Title of Regulation: 2VAC5-70. Health Requirements Governing the Control of Equine Infectious Anemia in Virginia (amending 2VAC5-70-20; repealing 2VAC5-70-30).

Statutory Authority: § 3.2-6002 of the Code of Virginia.

Effective Date: March 2, 2011.

Agency Contact: Doug Saunders, Deputy Director, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8905, FAX (804) 371-2380, or email doug.saunders@vdacs.virginia.gov.

Summary:

The amendments (i) clarify that testing requirements for equine infectious anemia apply to all horses involved in activities on properties where horses belonging to different owners may come into contact with each other and (ii) eliminate the alternate testing requirements for horses assembled for sale or auction in Virginia.

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

2VAC5-70-20. Testing requirements for horses exhibited at shows, fairs, or other exhibitions, or coming into contact with horses owned by others in Virginia.

All horses assembled at a show, fair, race meet, or other such function, or participating in any activity on properties where horses [ owned by two or more belonging to different ] owners may come into contact with each other in Virginia, must be accompanied by a report of an official negative test for equine infectious anemia [ . The test shall be ] conducted [ by an approved laboratory on a sample taken by an accredited veterinarian or a State-Federal Regulatory Veterinarian ] within [ 12 months 365 days ] prior to such event or activity. The person in charge will ensure that a copy of the official negative test results accompanies each horse in the event or activity, and shall make such reports available for inspection by a representative of the State Veterinarian upon request. The person in charge shall exclude any horse which is not accompanied by a negative test report.

2VAC5-70-30. Alternate testing requirements for horses assembled for sale or auction in Virginia. (Repealed.)

Horses may be assembled at a sale or auction without a negative test for equine infectious anemia, provided that the State Veterinarian so approves, and that the following requirements are met:

1. All horses, while assembled at the sale or auction, shall have blood samples drawn for equine infectious anemia testing.

2. Horses consigned or sold for immediate slaughter to an official slaughtering establishment are exempt from equine infectious anemia testing. Such horses shall be identified in a manner approved by the State Veterinarian, and a written permit shall be issued for their transfer to the slaughtering establishment.

3. The owner or manager of the sale or auction shall employ a licensed accredited veterinarian, who shall draw blood samples from all horses required to be tested, and shall record all visible markings or other permanent identification for each horse bled.

4. The owner or manager shall announce, prior to the sale or auction, that all nonslaughter horses will be tested. Each buyer of a nonslaughter horse or horses at the sale or auction shall sign a release form, signifying his agreement to maintain such horse or horses at a specified location until notified of the results of the test. Horses that prove negative to the test may move in normal trade channels. Owners of horses that react to the test must comply with 2VAC5-70-40 of this chapter.

5. The State Veterinarian may grant such exceptions to these requirements as he feels the circumstances warrant and that are not in variance with other rules and regulations of the Commonwealth of Virginia.

Titles of Regulations: 2VAC5-140. Health Requirements Governing the Admission of Livestock, Poultry, Companion Animals, and Other Animals or Birds into Virginia (repealing 2VAC5-140-10 through 2VAC5-140-140).

2VAC5-141. Health Requirements Governing the Admission of Agricultural Animals, Companion Animals, and Other Animals or Birds into Virginia (adding 2VAC5-141-10 through 2VAC5-141-130).

Statutory Authority: §§ 3.2-5902, 3.2-6001, and 3.2-6002 of the Code of Virginia.

Public Hearing Information:

March 24, 2011 - 10 a.m. - Board of Agriculture and Consumer Services, 102 Governor Street, 2nd Floor Board Room, Richmond, VA

Public Comment Deadline: April 1, 2011.

Agency Contact: Dr. Dan Kovich, Staff Veterinarian, Animal Care and Health Policy, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-2483, FAX (804) 371-2380, TTY (800) 828-1120, or email dan.kovich@vdacs.virginia.gov.

Basis: Section 3.2-5902 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations as may be necessary to establish the health of certain pet animals imported into Virginia.

Section 3.2-6001 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations in coordination with other states and the USDA to protect the livestock and poultry of Virginia.

Section 3.2-6002 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations as may be necessary to prevent, control, or eradicate infectious or contagious diseases in livestock and poultry in Virginia.

Purpose: The current regulations concerning the importation of animals into Virginia are outmoded. In the two decades since their enactment, significant changes have occurred concerning the priorities and methodology of state, federal, and international animal disease and marketing programs. Primary among these changes have been those impacting the control of bovine tuberculosis and those pertaining to animal disease traceability of agricultural animals in interstate trade. The proposed regulation will make Virginia current with federal and other state animal movement requirements and ensure that Virginia animal producers and owners are not placed at a disadvantage in interstate trade as well as protect the continuing viability of agricultural and companion animal industries. Since Virginia is a net exporter of agricultural animals, the Virginia animal entry requirements should minimize the risk of disease introduction and allow rapid response and control should disease introduction occur, while at the same time allowing for unimpeded commerce.

The proposed regulation also rectifies other identified deficiencies in the current regulation. Definitions are strengthened to fully encompass the scope of animals imported into the state to ensure that all animal species are properly accounted for and subject to reasonable and appropriate requirements. Exemptions to entry requirements for companion animals granted by the Code of Virginia are accounted for in the proposed regulation, removing existing inconsistencies. Outdated testing requirements for goats and camelids are removed in order to facilitate the development of these industries. Significant concessions have been granted to ensure the viability of Virginia's livestock marketing system. These changes will have a significant impact on the practicality of application of this regulation.

Substance: The proposed new regulation contains substantive changes to the existing regulation. These apply to the definitions used in the regulation, required components of certificate of veterinary inspections (CVI), animal identification requirements, and entry requirements for specific classes of animals, as follows:

• Definitions: Scientific nomenclature has been used to define specific classes of animals, to ensure that all species of interest are captured under the defined word.

• CVIs: The required components of CVIs have been updated to reflect current animal disease traceability requirements.

• Animal identification: The proposed regulation creates an animal identification requirement for certain classes of agricultural animals. Required identification for imported animals will enhance the ability for such animals to be traced, which is of crucial importance to mitigating any potential disease risk they may place to Virginia animal populations.

• Avian: The proposed regulations will now be applicable to all classes of birds entering Virginia, and the State Veterinarian's proclamation concerning avian influenza will be linked to them. This approach will give maximum flexibility in ensuring that imported birds do not pose a threat to Virginia's economically significant poultry industry. Testing requirements are brought into line with current needs.

• Cattle: The proposed regulation requires tuberculosis testing of certain classes of cattle, regardless of their origin. This change is in keeping with the requirements of many other states, and reflects the current concern regarding a resurgence of bovine tuberculosis. Virginia is a net exporter of cattle; it is critical that it remains to be considered free from tuberculosis for cattle.

• Companion animal: The proposed regulation takes into account the exemptions granted to the entry of certain companion animals by the Code of Virginia. The current regulation creates an apparent inadvertent inconsistency with the law in this regard.

• Goat and sheep: The proposed regulation brings goat and sheep entry requirements consistent with 2VAC5-206, concerning the control of scrapie. It also removes testing requirements for certain classes of goats to better reflect the risk posed to Virginia animal populations.

• Horses: The proposed regulation accounts for the adoption of equine interstate event permits in lieu of CVIs by Virginia and other signatory states.

• Other ruminants: The proposed regulation ties the importation requirements of other ruminants to the health status of cattle in the state of origin. This association allows for additional testing requirements for other ruminants to be applicable as necessary, and otherwise not create trade barriers. This change will have significant impact on the importation of camelids into Virginia, by greatly reducing the testing requirements such animals currently bear under most circumstances.

• Swine: The proposed regulations modernize Virginia's swine entry requirements in response to industry and federal changes.

• Primates: The proposed regulation imposes an identification requirement for the importation of primates under certain conditions.

Issues: The predominant issues associated with the proposed regulation apply to the identification of agricultural animals and the strengthening of tuberculosis testing requirements for cattle and other dairy animals. In regard to agricultural animal disease traceability, the strengthened CVI and identification requirements are directly linked to the dissolution of the National Animal Identification System by the USDA without easing of international country of origin labeling requirements. It is the stated intent of the federal government that state governments take on more responsibility for traceability of animal movements. The proposed regulation is designed to offer significant flexibility to select an appropriate traceability system for importers of animals, while at the same time ensuring a framework is in place to ensure that Virginia will remain able to export animals to other markets; easing of importation identification requirements may in turn place significant hurdles to those exporting animals.

The proposed regulation strengthens the tuberculosis testing requirements for cattle entering Virginia in response to concern regarding the resurgence of bovine tuberculosis in recent years. Under the current regulation, cattle are exempt from testing if they originate from a state or region considered free of tuberculosis by the USDA whereas other animals of lower risk, such as goats and South American camelids, are subject to testing regardless of origin. The proposed regulation in fact reverses this situation, mandating testing for all cattle (as well as goats and sheep used for dairying purposes) over 12 months of age. All other ruminants (including camelids and non-dairying goats and sheep) are not subject to testing requirements if they originate from an area considered free of tuberculosis for cattle. These proposed regulations better serve to protect Virginia's cattle industry from the threat of introduction of tuberculosis, while at the same time not presenting onerous requirements to other animal industries. Sufficient exemptions for cattle exist in the proposed regulation to protect the cattle slaughter and marketing industries from adverse impact.

Other changes in the proposed regulation should be of benefit to the affected industries, by way of facilitating trade, eliminating outdated or unnecessary testing requirements, or achieving parity with the requirements of neighboring states.

Requirements More Restrictive Than Federal: Federal regulations concerning the interstate movement of animals are designed to ensure the marketability of animals and animal products internationally. These regulations are not in and of themselves sufficient to fully protect the animal health status of an individual state. The proposed regulation, in keeping with those of many other states, is designed to provide comprehensive coverage of all animal species of interest. Therefore, the proposed regulation does include animal species, and testing requirements that are in addition to those imposed by federal regulation. These additional requirements are intended to safeguard Virginia animal industries and ensure their free and ready access to interstate and international markets.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services proposes to repeal the current regulations (2VAC5-140) concerning the requirements for entry of agricultural, companion, and other animals into Virginia; and replace it with a regulatory framework (2VAC5-141) that is consistent with the current status of interstate animal disease control and eradication programs and traceability requirements. Substantive changes include animal identification requirements for certain classes of imported animals, strengthened tuberculosis testing requirements for cattle, alignment of sheep and goat entry requirements with current scrapie control programs, and provision for free movement of agricultural animals from neighboring states to facilitate marketing. The current regulation has not been amended since 1989.

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

Estimated Economic Impact. Animal Identification - The proposed regulation creates an animal identification requirement for certain classes of agricultural animals. Required identification for imported animals will enhance the ability for such animals to be traced, which is beneficial for mitigating potential disease risk they may place to Virginia animal populations. There may be some cost associated with the proposed animal identification requirements.

Avian - The proposed regulations will now be applicable to all classes of birds entering Virginia, and the State Veterinarians proclamation concerning avian influenza will be linked to them. The current regulations only apply to poultry and psittacine birds (parrots). This will give maximum flexibility in ensuring that imported birds do not pose a threat to Virginia's economically significant poultry industry. Testing requirements have been brought into line with current needs.

Cattle - The existing regulations do not define cattle. The proposed regulations define cattle as all domestic and wild members of the genera bos, bison, and bubalus to include domestic cattle, yak, bison, and water buffalo.

The proposed regulation requires tuberculosis testing of certain classes of cattle, regardless of their origin. This change is in keeping with the requirements of many other states, and reflects the current concern regarding a resurgence of bovine tuberculosis. Virginia is a net exporter of cattle; it is critical that it remains considered free of tuberculosis for cattle.

Companion Animal - The proposed regulation takes into account the exemptions granted to the entry of certain companion animals by the Code of Virginia. The current regulation creates an apparent inadvertent inconsistency with the Code in this regard. Under the proposed regulations cats greater than four months of age entering Virginia shall be currently vaccinated for rabies.

Goat and Sheep - The proposed regulation brings goat and sheep entry requirements consistent with 2 VAC 5-206, concerning the control of scrapie. It also removes testing requirements for certain classes of goats to better reflect the risk posed to Virginia animal populations. TB testing is entirely new for sheep.

Horses - The proposed regulation accounts for the adoption of equine interstate event permits in lieu of CVIs by Virginia and other signatory states.

Other Ruminants - The current regulation imposes mandatory tuberculosis, brucellosis, and bluetongue testing for all South American camelids imported into Virginia, but does not require any testing of other, exotic ruminant species including deer (of equal or higher risk of infection) entering Virginia. The proposed regulation ensures that all other ruminants are subject to appropriate testing requirements, based on the disease status of cattle in the state of origin. In practice fewer camelids will require testing. This represents a $100 to $250 cost saving per animal.

Swine - The proposed regulations modernize Virginia's swine entry requirements in response to industry and federal changes. For non-commercial swine there is no proposed change in requirements.

Primates - The proposed regulation imposes an identification requirement for the importation of primates under certain conditions.

Businesses and Entities Affected. The proposed regulation will not have a significant impact on individuals or businesses dealing in avian, companion animal, horse, primate, or swine importations. The proposed regulation will clarify the entry requirements for such animals, but does not place more stringent requirements than the current regulation. The identification requirements for swine and horses are already industry standard. The proposed regulation will have a net positive impact on individuals and businesses importing goats and South American camelids. The proposed regulation will affect individuals and businesses importing sheep and certain classes of cattle, as well as livestock markets that deal in agricultural animals entering from states adjacent to Virginia.

There are approximately 26,000 farms with cattle in Virginia. Not all such farms import cattle. There are approximately 2,100 farms with sheep in Virginia. Not all such farms import sheep. Farms keeping goats and South American camelids are not currently quantified on an annual basis. Per the 2007 USDA Census of Agriculture, the agency estimates there are approximately 4,000 farms with goats and approximately 300 farms with a commercial interest in South American camelids in Virginia. Not all such farms import animals. There are approximately 25 livestock markets in Virginia.

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

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

This regulatory action proposes to repeal the current regulations (2VAC5-140) concerning the requirements for entry of agricultural, companion, and other animals into Virginia, and replace it with a regulatory framework (2VAC5-141) that is consistent with the current status of interstate animal disease control and eradication programs and traceability requirements. Substantive changes include animal identification requirements for certain classes of imported animals, strengthened tuberculosis testing requirements for cattle, alignment of sheep and goat entry requirements with current scrapie control programs, and provision for free movement of agricultural animals from neighboring states to facilitate marketing. The current regulation has not been amended since 1989.

CHAPTER 141
HEALTH REQUIREMENTS GOVERNING THE ADMISSION OF AGRICULTURAL ANIMALS, COMPANION ANIMALS, AND OTHER ANIMALS OR BIRDS INTO VIRGINIA

2VAC5-141-10. Definitions.

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

"Agricultural animals" means livestock and poultry.

"Approved livestock market" means a livestock market under inspection by the State Veterinarian.

"Avian" means all domestic and wild members of the class Aves.

"Cats" means all domestic and wild members of the family Felidae.

"Cattle" means all domestic and wild members of the genera bos, bison, and bubalus to include domestic cattle, yak, bison, and water buffalo.

"Certificate of veterinary inspection" means an official health certificate endorsed by a state, federal, or international government.

"Commercial swine" means swine that are continuously managed; are intended for the production of meat or breeding for such purposes; and have adequate facilities and practices to prevent exposure to feral swine, captive feral swine, or other swine that may have been exposed to feral or captive feral swine.

"Companion animal" means any vertebrate animal excluding ornamental fish not otherwise defined herein as avian, cattle, goat, horse, other ruminant, sheep, swine, or primate.

"Dairying purposes" means the production of milk or milk products, or the production of breeding stock whose progeny are to be used for the production of milk, milk products, or breeding stock.

"Dogs" means all domestic and wild members of the family Canidae.

"Exhibition purposes" means display at a scheduled event. Exhibition purposes shall not include rodeos and similar events where cattle, goats, sheep, and other ruminants are congregated for entertainment purposes.

"Goat" means all domestic and wild members of the genus capra.

"Hatching eggs" means all poultry eggs that are intended to be hatched.

"Horse" means all domestic and wild members of the family Equidae (horses, asses, zebras, and any hybrids of horses, asses, or zebras).

"Noncommercial swine" means all swine not otherwise herein defined as commercial or slaughter swine, including but not limited to wild hogs, feral swine, exhibition swine, or swine kept as pets.

"Other ruminants" means all members of the order Artiodactyla not otherwise defined herein as cattle, goats, sheep, or swine to include camelidae and cervidae imported for exhibition purposes.

"Permit" means an official document issued for and prior to the interstate shipment of certain classes of livestock, poultry, companion animals, and other animals or birds into Virginia. This permit is issued at the discretion of the State Veterinarian.

"Poultry" means all domestic fowl and game birds and ratites raised in captivity to include, but not be limited to, chickens, turkeys, ducks, geese, ratites, and game birds such as quail or partridge.

"Primate" means all nonhuman members of the order Primates.

"Region" means any premise, political subdivision of a state, country, or other defined geographic area.

"Sheep" means all domestic and wild members of the genus ovis.

"Slaughter establishment" means a livestock slaughter facility that is under inspection by the USDA or the Virginia Department of Agriculture and Consumer Services.

"Slaughter swine" means all swine brought into Virginia solely for the purpose of slaughter.

"State Veterinarian" means the State Veterinarian of the Commonwealth of Virginia or his designee.

"Swine" means all domestic and wild members of the family Suidae.

"USDA" means the United States Department of Agriculture.

"USDA-approved market" means a livestock market approved by the United States Department of Agriculture where livestock sold only for slaughter purposes can be identified and segregated in accordance with applicable state and federal regulations, and from which no such livestock intended for slaughter may be released except directly to another approved USDA market, or to a recognized slaughter establishment for immediate slaughter.

2VAC5-141-20. Certificates of veterinary inspection.

A. No agricultural animals, companion animals, or any other animals or birds of any species that are affected with or that have been exposed to any infectious or contagious disease shall be imported into Virginia except by special written permit of the State Veterinarian.

B. All agricultural animals, companion animals, or any other animals or birds of any species imported into Virginia, except livestock for immediate slaughter, shall be accompanied by a certificate of veterinary inspection, that shall be attached to the bill of lading or shall be in the possession of the person in charge of such animals or birds, and a copy of such certificate shall be forwarded promptly to the State Veterinarian.

C. A certificate of veterinary inspection shall be a written record meeting the requirements of Virginia and executed on an approved form of the state of origin. It shall contain the names and street addresses or premise identification numbers of the consignor and consignee, and premises of origin and destination if different. It shall indicate the health status of the animals or birds, and include the dates and results of all required tests.

D. After physical examination of the animal and completion of all required tests, the certificate of veterinary inspection shall be issued within 30 days before the date of entry for cattle, goats, horses, other ruminants, poultry, sheep, and swine.

E. After physical examination of the animal and completion of all required tests, the certificate of veterinary inspection shall be issued within 10 days before the date of entry for avian species not considered poultry, companion animals, and primates.

F. The certificate shall be issued by an accredited veterinarian approved by the animal health official of the state of origin; a veterinarian in the employ of the state of origin; or a veterinarian in the employ of the Veterinary Services Division, Animal and Plant Health Inspection Services, United States Department of Agriculture.

G. All testing required by these regulations shall be considered official if conducted by an accredited veterinarian or collected by an accredited veterinarian and conducted by an official animal health laboratory approved by a state or federal animal health agency as dictated by testing protocol.

2VAC5-141-30. Animal identification.

A. All shipments of poultry and hatching eggs entering Virginia must be accompanied by an approval number issued by the State Veterinarian.

B. Official identification for cattle can be:

1. Ear tag or other permanently affixed device bearing a unique identification number issued by an official state or federal program;

2. Ear tag or other permanently affixed device bearing a unique identification number issued by a performance registry, animal identification registry, producer cooperative, or other marketing association provided record of the issuance is available to the State Veterinarian; or

3. Other forms of permanent identification approved by the USDA or the State Veterinarian.

C. Official identification for goats and sheep can be:

1. Official ear tags that are approved by the USDA for use in the Scrapie Eradication Program or the Scrapie Flock Certification Program;

2. For goats exempt from identification required by the Scrapie Eradication Program, an ear tag or other affixed device bearing a unique identification number issued by an official state or federal program, or a breed, performance, or marketing association that allows the State Veterinarian access to records;

3. Legible official registry tattoo if accompanied by a registration certificate; and

4. Devices approved by the State Veterinarian that contain a premises identification issued by the state of origin in combination with a unique animal number.

D. Official identification for horses can be:

1. A thorough written or photographic record of the horse's appearance directly noted on or affixed to the official health certificate and endorsed by the issuing veterinarian;

2. Legible breed association tattoo number;

3. Affixed or implanted device bearing a unique identification number issued by a state or federal program, or a breed or performance association that allows the State Veterinarian access to records; and

4. Other forms of identification considered official by the USDA or the State Veterinarian.

E. Official identification for swine can be:

1. Ear tag, ear notch, or tattoo recorded by a purebred registry;

2. Ear tag or other affixed device bearing a unique individual or group identification number issued by an official state or federal program;

3. Official premise identification tattoo including state of origin; and

4. Other forms of identification considered official by the USDA or the State Veterinarian.

2VAC5-141-40. Entry by permit only.

A. When the State Veterinarian is informed of any unusual or serious outbreak of disease among livestock or poultry in any other region that, in his opinion, constitutes a threat to livestock and poultry in Virginia, he shall by proclamation prohibit the entrance of any livestock or poultry that originate either directly or indirectly from that region at his discretion, except by permit. He may also prohibit the entrance of any products as defined in the meat or poultry inspection regulations of the USDA, or in the Virginia Meat and Poultry Products Inspection Act, the Virginia Milk and Cream Law, or any other applicable or related Virginia statutes and regulations, except by permit. Specific classes of animals as listed in these regulations also require a permit for entry into Virginia.

B. Agricultural animals, companion animals, or any other animals or birds of any species imported into Virginia for bona fide scientific research by a recognized agricultural institution or institution licensed by the USDA, and for which compliance with the requirements of these regulations would be a detriment to the research, may be excused from the regulatory requirements at the discretion of the State Veterinarian by the issuance of a permit.

C. All requests for permits must be directed to the State Veterinarian in writing and must give all information as he may require.

2VAC5-141-50. Common carriers; trucks.

A. Owners and operators of common carriers, trucks, or other conveyances are forbidden to move any agricultural animals, companion animals, or any other animals or birds of any species into Virginia except in compliance with the provisions set forth in this regulation.

B. All railway cars, trucks, and other conveyances used for transportation of livestock or poultry must be kept in a sanitary condition. The State Veterinarian may require the cleaning and disinfecting of any conveyance at any time to prevent the spread of infectious or contagious diseases.

2VAC5-141-60. Avian entry requirements.

A. All entry of birds into Virginia must be in compliance with the testing and all other requirements of the State Veterinarian's Avian Influenza (H5 and H7) Proclamation dated December 2009. Certificates of veterinary inspection as required must be dated in accordance with said proclamation.

B. All birds in commerce not classified as poultry must be accompanied by a health certificate issued within 10 days prior to entry into Virginia. Any poultry in commerce that by its nature is fit only as a pet must be accompanied by an official health certificate issued within 10 days prior to entry into Virginia.

C. Approval numbers required for shipments of poultry and hatching eggs.

1. Each shipper of poultry or hatching eggs shall first secure an approval number from the State Veterinarian. This approval number must appear on each shipment of poultry or hatching eggs shipped into Virginia.

2. Applications for approval numbers must be made on forms provided by the State Veterinarian. Each application shall require the following information on each premises from which the poultry or hatching eggs originate:

a. The name and address of each premises owner;

b. The species and the number of birds for each on each premise, or for hatcheries hatching capacity;

c. For chickens and turkeys, and the parent flock of the hatching eggs of chickens and turkeys, the date of the most recent Pullorum-typhoid test, the total number or the percentage of positive reactions to said test, and the Pullorum-typhoid status attained; and

d. Any additional information the State Veterinarian may require.

3. Applications, when completed, must be forwarded to the official state agency, the state livestock health official, or other competent and recognized authority of the state of origin for verification, approval, and signature and then forwarded to the State Veterinarian for final approval.

4. Poultry and hatching eggs shall not be shipped into Virginia until final approval has been granted and the permit is received.

D. Chickens, turkeys, and hatching eggs of chickens and turkeys shall not be imported into Virginia unless originating exclusively from flocks or hatcheries participating in the National Poultry Improvement Plan (NPIP) or issued a permit and negative to a Pullorum-typhoid test within 30 days prior to entry.

E. Exemptions for hatching eggs and poultry, providing the hatching eggs or poultry remain subject to the State Veterinarian's Avian influenza (H5 and H7) Proclamation dated December 2009.

1. This regulation shall not apply to hatching eggs or poultry passing directly through the Commonwealth of Virginia in interstate commerce.

2. This regulation shall not apply to poultry imported into the Commonwealth of Virginia for immediate slaughter and consigned directly to a poultry processing establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services.

F. Exemptions for birds other than poultry, providing the birds remain subject to the State Veterinarian's Avian Influenza (H5 and H7) Proclamation dated December 2009.

1. This regulation shall not apply to birds other than poultry that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to birds other than poultry when the birds are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to birds other than poultry brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to birds other than poultry brought into Virginia for less than 10 days for the purpose of hunting or legal exhibition with no change of ownership.

G. This regulation shall not be construed to (i) permit the entry into Virginia of any avian species otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2VAC5-141-70. Cattle entry requirements.

A. All cattle entering Virginia must bear official identification and the official identification number must be noted on the certificate of veterinary inspection. If multiple cattle of similar breed, age and sex are listed on the certificate of veterinary inspection, sequential identification numbers may be summarized.

B. All cattle 12 months of age or older require a negative caudal fold or comparative cervical tuberculin test within 60 days prior to entry into Virginia. This requirement shall not apply to:

1. Cattle consigned directly from an accredited tuberculosis-free herd provided the accreditation number and date of the last herd test are listed on the certificate of veterinary inspection;

2. Cattle that originate from a region considered free of tuberculosis for cattle by the USDA and consigned directly to a slaughter establishment or to a USDA-approved market and from there directly to a slaughter establishment; or

3. Cattle entering Virginia for a period of 10 days or less for exhibition purposes provided they originate from a region considered free of tuberculosis for cattle by the USDA and no change of ownership occurs.

C. All cattle originating from a region not considered free of tuberculosis for cattle by the USDA require a permit and a negative caudal or comparative cervical tuberculin test within 60 days prior to entry into Virginia. This requirement shall not apply to:

1. Cattle consigned directly from an accredited tuberculosis-free herd provided the accreditation number and date of the last herd test are listed on the certificate of veterinary inspection; and

2. Cattle consigned directly to a slaughter establishment.

D. All sexually intact cattle originating from a region not considered free of brucellosis by the USDA require a permit and an individual brucellosis test within 30 days prior to entry into Virginia. Animals allowed entry under a permit will be quarantined on the premises of the consignee until retested at the consignee's expense and found negative to brucellosis no less than 45 days and no more than 120 days after entry as indicated by the permit. This requirement shall not apply to:

1. Cattle consigned directly from a certified brucellosis-free herd provided the certification number and date of the last herd test are listed on the official health certificate; and

2. Cattle consigned directly to a slaughter establishment.

E. Cattle may be imported for immediate slaughter into Virginia without a certificate of veterinary inspection provided they are consigned directly to a slaughter establishment. Official identification for all cattle under this subsection must be listed on the waybill.

F. Cattle from a farm of origin in a state adjoining Virginia and from a region therein considered free of tuberculosis and brucellosis for cattle by the USDA may enter Virginia for the purpose of sale at an approved livestock market without a certificate of veterinary inspection and without tuberculosis testing if otherwise required provided:

1. The cattle bear required individual identification; and

2. The approved livestock market maintains for at least two years and makes available to the State Veterinarian a record of the consignor of the cattle, the identification numbers of the cattle he consigns, and the buyer of the cattle.

2VAC5-141-80. Companion animal entry requirements.

A. Companion animals must be accompanied by a certificate of veterinary inspection issued within 10 days prior to entry into Virginia.

B. No dog or cat less than eight weeks of age may be imported into Virginia unless accompanied by its dam.

C. Any dog or cat greater than four months of age entering Virginia shall be currently vaccinated for rabies.

D. Exemptions.

1. This regulation shall not apply to companion animals that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to companion animals that are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to companion animals brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to companion animals brought into Virginia for less than 10 days for the purpose of hunting or legal exhibition with no change of ownership.

E. This regulation shall not be construed to (i) permit the entry into Virginia of any species of animal otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2 VAC5-141-90. Goat and sheep entry requirements.

A. All goats and sheep entering Virginia must be officially identified and the official identification number must be noted on the certificate of veterinary inspection. If multiple goats or sheep of similar breed, age, and sex are listed on the certificate of veterinary inspection, sequential identification numbers may be summarized.

B. Scrapie control.

1. No sheep or goat may be imported into Virginia that does not originate from a scrapie consistent state unless originating from a flock enrolled in the complete monitored or export monitored category of the USDA Scrapie Flock Certification Program.

2. No goat or sheep infected with scrapie, or the offspring of a goat or sheep infected with scrapie, may enter Virginia.

C. All goats and sheep 12 months of age or older imported into Virginia for dairying purposes shall be negative to a tuberculosis test within 60 days prior to entry. All other goats and sheep originating from a region considered free of tuberculosis for cattle by the USDA may enter Virginia without tuberculosis testing.

D. All goats and sheep originating from a region not considered free of tuberculosis for cattle by the USDA shall be negative to a tuberculosis test within 60 days prior to entry unless consigned directly to a livestock slaughter establishment. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

E. All sexually intact goats and sheep originating from a region not considered free of brucellosis for cattle by the USDA shall be negative to a brucellosis test within 30 days prior to entry unless consigned directly to a livestock slaughter establishment. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

F. Goats and sheep may be imported for immediate slaughter into Virginia without a certificate of veterinary inspection provided they are consigned directly to a livestock slaughter establishment or to a USDA-approved market and from there directly to a livestock slaughter establishment.

G. Goats and sheep from a farm of origin in a state adjoining Virginia and from a region therein considered free of tuberculosis and brucellosis for cattle by the USDA may enter Virginia for the purpose of sale at an approved livestock market without a certificate of veterinary inspection and without tuberculosis testing if otherwise required provided:

1. The goats and sheep bear required individual identification; and

2. The approved livestock market maintains for at least two years and makes available to the State Veterinarian a record of the consignor of the goats and sheep, the identification numbers of the goats and sheep he consigns, and the buyer of the goats and sheep.

2VAC5-141-100. Horse entry requirements.

A. All horses entering Virginia must be officially identified, and the official identification must be noted on the official health certificate.

B. Equine infectious anemia testing.

1. All horses imported into Virginia shall have been officially tested and found negative for equine infectious anemia within the past 12 months and be accompanied by an official certificate stating this information.

2. Horses that originate from infected premises in other states are not eligible for entry into Virginia except by permit at the State Veterinarian's discretion.

3. Foals six months of age or under accompanying a tested negative dam are exempt from testing.

C. Contagious equine metritis control.

1. No horse over two years of age that either originated in or has passed through premises or a country where contagious equine metritis is known to exist may enter the Commonwealth of Virginia except by permit.

2. Horses that are issued a permit immediately will be placed under quarantine and assigned a testing protocol at the consignee's expense until the State Veterinarian is satisfied that they pose no danger to the Virginia equine population.

D. Horses may enter Virginia with an official equine interstate event permit issued by another state in lieu of certificate of veterinary inspection provided the permit is not expired.

2VAC5-141-110. Other ruminant entry requirements.

A. All other ruminants entering Virginia must bear an individual identification number, and such identification number must be noted on the certificate of veterinary inspection. Identification can be a tattoo, microchip, ear tag issued by a state or federal entity, or other form of identification approved by the State Veterinarian.

B. All other ruminants originating from a region not considered free of tuberculosis for cattle by the USDA shall be negative to a tuberculosis test within 60 days prior to entry. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

C. All sexually intact other ruminants originating from a region not considered free of brucellosis for cattle by the USDA shall be negative to a brucellosis test within 30 days prior to entry. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

D. This regulation shall not be construed to (i) permit the entry into Virginia of any species of animal otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2VAC5-141-120. Swine entry requirements.

A. All swine entering Virginia must bear an identification number, and the identification number must be noted on the certificate of veterinary inspection.

B. Commercial swine entry requirements.

1. Commercial swine originating from a herd or region that is considered free from brucellosis and pseudorabies by a federal program or a state program approved by the State Veterinarian may enter Virginia without further testing requirements provided a statement indicating the region is considered free from brucellosis by a federal or state program or verification of herd participation in the federal or state program is indicated on the certificate of veterinary inspection.

2. Sexually intact commercial swine over four months of age not originating from a herd or region considered free of brucellosis by a federal program or a state program approved by the State Veterinarian must be negative to a brucellosis test within 30 days prior to entry into Virginia.

3. Commercial swine not originating from herd or region that is considered free from pseudorabies by a federal program or a state program approved by the State Veterinarian shall be individually tested and negative to a pseudorabies test within 30 days prior to entry into Virginia. Sexually intact swine shall be quarantined at the premises of destination until retested between 30 and 60 days after importation at the consignee's expense.

4. No commercial swine vaccinated for pseudorabies shall be imported into Virginia unless under permit for direct slaughter.

C. Noncommercial swine entry requirements.

1. Noncommercial swine originating from herds considered free from brucellosis and pseudorabies by a federal program or a state program approved by the State Veterinarian may enter Virginia without further testing requirements provided verification of herd participation in the federal or state program is indicated on the certificate of veterinary inspection and the commercial swine have not had contact with feral swine.

2. Sexually intact noncommercial swine over four months of age not from a herd considered free from brucellosis by a federal program or a state program approved by the State Veterinarian must be negative to a brucellosis test within 30 days prior to entry into Virginia.

3. Noncommercial swine not from a herd considered free from pseudorabies by a federal program or a state program approved by the State Veterinarian shall be negative to a pseudorabies test within 30 days prior to entry into Virginia. Sexually intact swine shall be quarantined at the premises of destination until retested between 30 and 60 days after importation at the consignee's expense.

4. No noncommercial swine vaccinated for pseudorabies shall be imported into Virginia unless under permit at the discretion of the State Veterinarian and subject to any restrictions he deems necessary.

D. Slaughter swine entry requirements.

1. No slaughter swine known to be infected with or exposed to pseudorabies and no swine vaccinated for pseudorabies may enter Virginia unless:

a. It is shipped directly to a slaughter establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services under permit;

b. It is shipped in a sealed vehicle or individually identified on the permit; and

c. The conveyance transporting the swine into Virginia is cleaned and disinfected after the swine is off-loaded but prior to the conveyance leaving the slaughter establishment.

2. Any slaughter swine not known to be infected with or exposed to pseudorabies may enter Virginia without a certificate of veterinary inspection, but only if it is accompanied by a waybill, bill of lading, bill of sale, or other document that identifies the swine to the farm of origin and only if it is sent directly to:

a. A slaughter establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services; or

b. A USDA-approved market and from there directly to a recognized slaughter establishment.

E. Commercial swine intended for feeding purposes and not intended for breeding purposes from a farm of origin in a state adjoining Virginia and from a region therein considered free of pseudorabies by a federal or state program approved by the State Veterinarian may enter Virginia without a certificate of veterinary inspection.

2VAC5-141-130. Primate entry requirements.

A. All primates imported into Virginia require a certificate of veterinary inspection issued within 10 days prior to entry.

B. All primates imported into Virginia must be microchipped, and such microchip number must be noted on the certificate of veterinary inspection.

C. The official health certificate shall include a statement attesting to the fact that the veterinarian has carefully examined the oral mucosa of the primate and has found no evidence of disease lesions or inflammatory processes.

D. Tuberculosis testing requirements.

1. Primates imported into Virginia shall have a negative tuberculosis test performed by an accredited veterinarian within 30 days prior to entry. The official health certificate must indicate the kind and amount of tuberculin used, the date and hour of injection, and the date and hour of reading.

2. Primates that have been associated with a colony where there have been other primates showing response to the tuberculin test shall not be eligible for entry into Virginia unless and until all primates in the colony shall have passed two consecutive tuberculosis tests not less than 30 days apart.

E. Exceptions.

1. This regulation shall not apply to primates that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to primates that are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to primates brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia, except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to primates brought into Virginia for less than 10 days for the purpose of legal exhibition with no change of ownership.

FORMS (2VAC5-141)

Poultry Permit Packet (eff. 01/11).

DOCUMENTS INCORPORATED BY REFERENCE (2VAC5-141)

Avian Influenza (H5 and H7) Proclamation, eff. December 4, 2009, Department of Agriculture and Consumer Services, State Veterinarian's Office, P.O. Box 1163, Richmond, VA 23218.

Titles of Regulations: 2VAC5-140. Health Requirements Governing the Admission of Livestock, Poultry, Companion Animals, and Other Animals or Birds into Virginia (repealing 2VAC5-140-10 through 2VAC5-140-140).

2VAC5-141. Health Requirements Governing the Admission of Agricultural Animals, Companion Animals, and Other Animals or Birds into Virginia (adding 2VAC5-141-10 through 2VAC5-141-130).

Statutory Authority: §§ 3.2-5902, 3.2-6001, and 3.2-6002 of the Code of Virginia.

Public Hearing Information:

March 24, 2011 - 10 a.m. - Board of Agriculture and Consumer Services, 102 Governor Street, 2nd Floor Board Room, Richmond, VA

Public Comment Deadline: April 1, 2011.

Agency Contact: Dr. Dan Kovich, Staff Veterinarian, Animal Care and Health Policy, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-2483, FAX (804) 371-2380, TTY (800) 828-1120, or email dan.kovich@vdacs.virginia.gov.

Basis: Section 3.2-5902 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations as may be necessary to establish the health of certain pet animals imported into Virginia.

Section 3.2-6001 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations in coordination with other states and the USDA to protect the livestock and poultry of Virginia.

Section 3.2-6002 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations as may be necessary to prevent, control, or eradicate infectious or contagious diseases in livestock and poultry in Virginia.

Purpose: The current regulations concerning the importation of animals into Virginia are outmoded. In the two decades since their enactment, significant changes have occurred concerning the priorities and methodology of state, federal, and international animal disease and marketing programs. Primary among these changes have been those impacting the control of bovine tuberculosis and those pertaining to animal disease traceability of agricultural animals in interstate trade. The proposed regulation will make Virginia current with federal and other state animal movement requirements and ensure that Virginia animal producers and owners are not placed at a disadvantage in interstate trade as well as protect the continuing viability of agricultural and companion animal industries. Since Virginia is a net exporter of agricultural animals, the Virginia animal entry requirements should minimize the risk of disease introduction and allow rapid response and control should disease introduction occur, while at the same time allowing for unimpeded commerce.

The proposed regulation also rectifies other identified deficiencies in the current regulation. Definitions are strengthened to fully encompass the scope of animals imported into the state to ensure that all animal species are properly accounted for and subject to reasonable and appropriate requirements. Exemptions to entry requirements for companion animals granted by the Code of Virginia are accounted for in the proposed regulation, removing existing inconsistencies. Outdated testing requirements for goats and camelids are removed in order to facilitate the development of these industries. Significant concessions have been granted to ensure the viability of Virginia's livestock marketing system. These changes will have a significant impact on the practicality of application of this regulation.

Substance: The proposed new regulation contains substantive changes to the existing regulation. These apply to the definitions used in the regulation, required components of certificate of veterinary inspections (CVI), animal identification requirements, and entry requirements for specific classes of animals, as follows:

• Definitions: Scientific nomenclature has been used to define specific classes of animals, to ensure that all species of interest are captured under the defined word.

• CVIs: The required components of CVIs have been updated to reflect current animal disease traceability requirements.

• Animal identification: The proposed regulation creates an animal identification requirement for certain classes of agricultural animals. Required identification for imported animals will enhance the ability for such animals to be traced, which is of crucial importance to mitigating any potential disease risk they may place to Virginia animal populations.

• Avian: The proposed regulations will now be applicable to all classes of birds entering Virginia, and the State Veterinarian's proclamation concerning avian influenza will be linked to them. This approach will give maximum flexibility in ensuring that imported birds do not pose a threat to Virginia's economically significant poultry industry. Testing requirements are brought into line with current needs.

• Cattle: The proposed regulation requires tuberculosis testing of certain classes of cattle, regardless of their origin. This change is in keeping with the requirements of many other states, and reflects the current concern regarding a resurgence of bovine tuberculosis. Virginia is a net exporter of cattle; it is critical that it remains to be considered free from tuberculosis for cattle.

• Companion animal: The proposed regulation takes into account the exemptions granted to the entry of certain companion animals by the Code of Virginia. The current regulation creates an apparent inadvertent inconsistency with the law in this regard.

• Goat and sheep: The proposed regulation brings goat and sheep entry requirements consistent with 2VAC5-206, concerning the control of scrapie. It also removes testing requirements for certain classes of goats to better reflect the risk posed to Virginia animal populations.

• Horses: The proposed regulation accounts for the adoption of equine interstate event permits in lieu of CVIs by Virginia and other signatory states.

• Other ruminants: The proposed regulation ties the importation requirements of other ruminants to the health status of cattle in the state of origin. This association allows for additional testing requirements for other ruminants to be applicable as necessary, and otherwise not create trade barriers. This change will have significant impact on the importation of camelids into Virginia, by greatly reducing the testing requirements such animals currently bear under most circumstances.

• Swine: The proposed regulations modernize Virginia's swine entry requirements in response to industry and federal changes.

• Primates: The proposed regulation imposes an identification requirement for the importation of primates under certain conditions.

Issues: The predominant issues associated with the proposed regulation apply to the identification of agricultural animals and the strengthening of tuberculosis testing requirements for cattle and other dairy animals. In regard to agricultural animal disease traceability, the strengthened CVI and identification requirements are directly linked to the dissolution of the National Animal Identification System by the USDA without easing of international country of origin labeling requirements. It is the stated intent of the federal government that state governments take on more responsibility for traceability of animal movements. The proposed regulation is designed to offer significant flexibility to select an appropriate traceability system for importers of animals, while at the same time ensuring a framework is in place to ensure that Virginia will remain able to export animals to other markets; easing of importation identification requirements may in turn place significant hurdles to those exporting animals.

The proposed regulation strengthens the tuberculosis testing requirements for cattle entering Virginia in response to concern regarding the resurgence of bovine tuberculosis in recent years. Under the current regulation, cattle are exempt from testing if they originate from a state or region considered free of tuberculosis by the USDA whereas other animals of lower risk, such as goats and South American camelids, are subject to testing regardless of origin. The proposed regulation in fact reverses this situation, mandating testing for all cattle (as well as goats and sheep used for dairying purposes) over 12 months of age. All other ruminants (including camelids and non-dairying goats and sheep) are not subject to testing requirements if they originate from an area considered free of tuberculosis for cattle. These proposed regulations better serve to protect Virginia's cattle industry from the threat of introduction of tuberculosis, while at the same time not presenting onerous requirements to other animal industries. Sufficient exemptions for cattle exist in the proposed regulation to protect the cattle slaughter and marketing industries from adverse impact.

Other changes in the proposed regulation should be of benefit to the affected industries, by way of facilitating trade, eliminating outdated or unnecessary testing requirements, or achieving parity with the requirements of neighboring states.

Requirements More Restrictive Than Federal: Federal regulations concerning the interstate movement of animals are designed to ensure the marketability of animals and animal products internationally. These regulations are not in and of themselves sufficient to fully protect the animal health status of an individual state. The proposed regulation, in keeping with those of many other states, is designed to provide comprehensive coverage of all animal species of interest. Therefore, the proposed regulation does include animal species, and testing requirements that are in addition to those imposed by federal regulation. These additional requirements are intended to safeguard Virginia animal industries and ensure their free and ready access to interstate and international markets.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services proposes to repeal the current regulations (2VAC5-140) concerning the requirements for entry of agricultural, companion, and other animals into Virginia; and replace it with a regulatory framework (2VAC5-141) that is consistent with the current status of interstate animal disease control and eradication programs and traceability requirements. Substantive changes include animal identification requirements for certain classes of imported animals, strengthened tuberculosis testing requirements for cattle, alignment of sheep and goat entry requirements with current scrapie control programs, and provision for free movement of agricultural animals from neighboring states to facilitate marketing. The current regulation has not been amended since 1989.

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

Estimated Economic Impact. Animal Identification - The proposed regulation creates an animal identification requirement for certain classes of agricultural animals. Required identification for imported animals will enhance the ability for such animals to be traced, which is beneficial for mitigating potential disease risk they may place to Virginia animal populations. There may be some cost associated with the proposed animal identification requirements.

Avian - The proposed regulations will now be applicable to all classes of birds entering Virginia, and the State Veterinarians proclamation concerning avian influenza will be linked to them. The current regulations only apply to poultry and psittacine birds (parrots). This will give maximum flexibility in ensuring that imported birds do not pose a threat to Virginia's economically significant poultry industry. Testing requirements have been brought into line with current needs.

Cattle - The existing regulations do not define cattle. The proposed regulations define cattle as all domestic and wild members of the genera bos, bison, and bubalus to include domestic cattle, yak, bison, and water buffalo.

The proposed regulation requires tuberculosis testing of certain classes of cattle, regardless of their origin. This change is in keeping with the requirements of many other states, and reflects the current concern regarding a resurgence of bovine tuberculosis. Virginia is a net exporter of cattle; it is critical that it remains considered free of tuberculosis for cattle.

Companion Animal - The proposed regulation takes into account the exemptions granted to the entry of certain companion animals by the Code of Virginia. The current regulation creates an apparent inadvertent inconsistency with the Code in this regard. Under the proposed regulations cats greater than four months of age entering Virginia shall be currently vaccinated for rabies.

Goat and Sheep - The proposed regulation brings goat and sheep entry requirements consistent with 2 VAC 5-206, concerning the control of scrapie. It also removes testing requirements for certain classes of goats to better reflect the risk posed to Virginia animal populations. TB testing is entirely new for sheep.

Horses - The proposed regulation accounts for the adoption of equine interstate event permits in lieu of CVIs by Virginia and other signatory states.

Other Ruminants - The current regulation imposes mandatory tuberculosis, brucellosis, and bluetongue testing for all South American camelids imported into Virginia, but does not require any testing of other, exotic ruminant species including deer (of equal or higher risk of infection) entering Virginia. The proposed regulation ensures that all other ruminants are subject to appropriate testing requirements, based on the disease status of cattle in the state of origin. In practice fewer camelids will require testing. This represents a $100 to $250 cost saving per animal.

Swine - The proposed regulations modernize Virginia's swine entry requirements in response to industry and federal changes. For non-commercial swine there is no proposed change in requirements.

Primates - The proposed regulation imposes an identification requirement for the importation of primates under certain conditions.

Businesses and Entities Affected. The proposed regulation will not have a significant impact on individuals or businesses dealing in avian, companion animal, horse, primate, or swine importations. The proposed regulation will clarify the entry requirements for such animals, but does not place more stringent requirements than the current regulation. The identification requirements for swine and horses are already industry standard. The proposed regulation will have a net positive impact on individuals and businesses importing goats and South American camelids. The proposed regulation will affect individuals and businesses importing sheep and certain classes of cattle, as well as livestock markets that deal in agricultural animals entering from states adjacent to Virginia.

There are approximately 26,000 farms with cattle in Virginia. Not all such farms import cattle. There are approximately 2,100 farms with sheep in Virginia. Not all such farms import sheep. Farms keeping goats and South American camelids are not currently quantified on an annual basis. Per the 2007 USDA Census of Agriculture, the agency estimates there are approximately 4,000 farms with goats and approximately 300 farms with a commercial interest in South American camelids in Virginia. Not all such farms import animals. There are approximately 25 livestock markets in Virginia.

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

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

This regulatory action proposes to repeal the current regulations (2VAC5-140) concerning the requirements for entry of agricultural, companion, and other animals into Virginia, and replace it with a regulatory framework (2VAC5-141) that is consistent with the current status of interstate animal disease control and eradication programs and traceability requirements. Substantive changes include animal identification requirements for certain classes of imported animals, strengthened tuberculosis testing requirements for cattle, alignment of sheep and goat entry requirements with current scrapie control programs, and provision for free movement of agricultural animals from neighboring states to facilitate marketing. The current regulation has not been amended since 1989.

CHAPTER 141
HEALTH REQUIREMENTS GOVERNING THE ADMISSION OF AGRICULTURAL ANIMALS, COMPANION ANIMALS, AND OTHER ANIMALS OR BIRDS INTO VIRGINIA

2VAC5-141-10. Definitions.

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

"Agricultural animals" means livestock and poultry.

"Approved livestock market" means a livestock market under inspection by the State Veterinarian.

"Avian" means all domestic and wild members of the class Aves.

"Cats" means all domestic and wild members of the family Felidae.

"Cattle" means all domestic and wild members of the genera bos, bison, and bubalus to include domestic cattle, yak, bison, and water buffalo.

"Certificate of veterinary inspection" means an official health certificate endorsed by a state, federal, or international government.

"Commercial swine" means swine that are continuously managed; are intended for the production of meat or breeding for such purposes; and have adequate facilities and practices to prevent exposure to feral swine, captive feral swine, or other swine that may have been exposed to feral or captive feral swine.

"Companion animal" means any vertebrate animal excluding ornamental fish not otherwise defined herein as avian, cattle, goat, horse, other ruminant, sheep, swine, or primate.

"Dairying purposes" means the production of milk or milk products, or the production of breeding stock whose progeny are to be used for the production of milk, milk products, or breeding stock.

"Dogs" means all domestic and wild members of the family Canidae.

"Exhibition purposes" means display at a scheduled event. Exhibition purposes shall not include rodeos and similar events where cattle, goats, sheep, and other ruminants are congregated for entertainment purposes.

"Goat" means all domestic and wild members of the genus capra.

"Hatching eggs" means all poultry eggs that are intended to be hatched.

"Horse" means all domestic and wild members of the family Equidae (horses, asses, zebras, and any hybrids of horses, asses, or zebras).

"Noncommercial swine" means all swine not otherwise herein defined as commercial or slaughter swine, including but not limited to wild hogs, feral swine, exhibition swine, or swine kept as pets.

"Other ruminants" means all members of the order Artiodactyla not otherwise defined herein as cattle, goats, sheep, or swine to include camelidae and cervidae imported for exhibition purposes.

"Permit" means an official document issued for and prior to the interstate shipment of certain classes of livestock, poultry, companion animals, and other animals or birds into Virginia. This permit is issued at the discretion of the State Veterinarian.

"Poultry" means all domestic fowl and game birds and ratites raised in captivity to include, but not be limited to, chickens, turkeys, ducks, geese, ratites, and game birds such as quail or partridge.

"Primate" means all nonhuman members of the order Primates.

"Region" means any premise, political subdivision of a state, country, or other defined geographic area.

"Sheep" means all domestic and wild members of the genus ovis.

"Slaughter establishment" means a livestock slaughter facility that is under inspection by the USDA or the Virginia Department of Agriculture and Consumer Services.

"Slaughter swine" means all swine brought into Virginia solely for the purpose of slaughter.

"State Veterinarian" means the State Veterinarian of the Commonwealth of Virginia or his designee.

"Swine" means all domestic and wild members of the family Suidae.

"USDA" means the United States Department of Agriculture.

"USDA-approved market" means a livestock market approved by the United States Department of Agriculture where livestock sold only for slaughter purposes can be identified and segregated in accordance with applicable state and federal regulations, and from which no such livestock intended for slaughter may be released except directly to another approved USDA market, or to a recognized slaughter establishment for immediate slaughter.

2VAC5-141-20. Certificates of veterinary inspection.

A. No agricultural animals, companion animals, or any other animals or birds of any species that are affected with or that have been exposed to any infectious or contagious disease shall be imported into Virginia except by special written permit of the State Veterinarian.

B. All agricultural animals, companion animals, or any other animals or birds of any species imported into Virginia, except livestock for immediate slaughter, shall be accompanied by a certificate of veterinary inspection, that shall be attached to the bill of lading or shall be in the possession of the person in charge of such animals or birds, and a copy of such certificate shall be forwarded promptly to the State Veterinarian.

C. A certificate of veterinary inspection shall be a written record meeting the requirements of Virginia and executed on an approved form of the state of origin. It shall contain the names and street addresses or premise identification numbers of the consignor and consignee, and premises of origin and destination if different. It shall indicate the health status of the animals or birds, and include the dates and results of all required tests.

D. After physical examination of the animal and completion of all required tests, the certificate of veterinary inspection shall be issued within 30 days before the date of entry for cattle, goats, horses, other ruminants, poultry, sheep, and swine.

E. After physical examination of the animal and completion of all required tests, the certificate of veterinary inspection shall be issued within 10 days before the date of entry for avian species not considered poultry, companion animals, and primates.

F. The certificate shall be issued by an accredited veterinarian approved by the animal health official of the state of origin; a veterinarian in the employ of the state of origin; or a veterinarian in the employ of the Veterinary Services Division, Animal and Plant Health Inspection Services, United States Department of Agriculture.

G. All testing required by these regulations shall be considered official if conducted by an accredited veterinarian or collected by an accredited veterinarian and conducted by an official animal health laboratory approved by a state or federal animal health agency as dictated by testing protocol.

2VAC5-141-30. Animal identification.

A. All shipments of poultry and hatching eggs entering Virginia must be accompanied by an approval number issued by the State Veterinarian.

B. Official identification for cattle can be:

1. Ear tag or other permanently affixed device bearing a unique identification number issued by an official state or federal program;

2. Ear tag or other permanently affixed device bearing a unique identification number issued by a performance registry, animal identification registry, producer cooperative, or other marketing association provided record of the issuance is available to the State Veterinarian; or

3. Other forms of permanent identification approved by the USDA or the State Veterinarian.

C. Official identification for goats and sheep can be:

1. Official ear tags that are approved by the USDA for use in the Scrapie Eradication Program or the Scrapie Flock Certification Program;

2. For goats exempt from identification required by the Scrapie Eradication Program, an ear tag or other affixed device bearing a unique identification number issued by an official state or federal program, or a breed, performance, or marketing association that allows the State Veterinarian access to records;

3. Legible official registry tattoo if accompanied by a registration certificate; and

4. Devices approved by the State Veterinarian that contain a premises identification issued by the state of origin in combination with a unique animal number.

D. Official identification for horses can be:

1. A thorough written or photographic record of the horse's appearance directly noted on or affixed to the official health certificate and endorsed by the issuing veterinarian;

2. Legible breed association tattoo number;

3. Affixed or implanted device bearing a unique identification number issued by a state or federal program, or a breed or performance association that allows the State Veterinarian access to records; and

4. Other forms of identification considered official by the USDA or the State Veterinarian.

E. Official identification for swine can be:

1. Ear tag, ear notch, or tattoo recorded by a purebred registry;

2. Ear tag or other affixed device bearing a unique individual or group identification number issued by an official state or federal program;

3. Official premise identification tattoo including state of origin; and

4. Other forms of identification considered official by the USDA or the State Veterinarian.

2VAC5-141-40. Entry by permit only.

A. When the State Veterinarian is informed of any unusual or serious outbreak of disease among livestock or poultry in any other region that, in his opinion, constitutes a threat to livestock and poultry in Virginia, he shall by proclamation prohibit the entrance of any livestock or poultry that originate either directly or indirectly from that region at his discretion, except by permit. He may also prohibit the entrance of any products as defined in the meat or poultry inspection regulations of the USDA, or in the Virginia Meat and Poultry Products Inspection Act, the Virginia Milk and Cream Law, or any other applicable or related Virginia statutes and regulations, except by permit. Specific classes of animals as listed in these regulations also require a permit for entry into Virginia.

B. Agricultural animals, companion animals, or any other animals or birds of any species imported into Virginia for bona fide scientific research by a recognized agricultural institution or institution licensed by the USDA, and for which compliance with the requirements of these regulations would be a detriment to the research, may be excused from the regulatory requirements at the discretion of the State Veterinarian by the issuance of a permit.

C. All requests for permits must be directed to the State Veterinarian in writing and must give all information as he may require.

2VAC5-141-50. Common carriers; trucks.

A. Owners and operators of common carriers, trucks, or other conveyances are forbidden to move any agricultural animals, companion animals, or any other animals or birds of any species into Virginia except in compliance with the provisions set forth in this regulation.

B. All railway cars, trucks, and other conveyances used for transportation of livestock or poultry must be kept in a sanitary condition. The State Veterinarian may require the cleaning and disinfecting of any conveyance at any time to prevent the spread of infectious or contagious diseases.

2VAC5-141-60. Avian entry requirements.

A. All entry of birds into Virginia must be in compliance with the testing and all other requirements of the State Veterinarian's Avian Influenza (H5 and H7) Proclamation dated December 2009. Certificates of veterinary inspection as required must be dated in accordance with said proclamation.

B. All birds in commerce not classified as poultry must be accompanied by a health certificate issued within 10 days prior to entry into Virginia. Any poultry in commerce that by its nature is fit only as a pet must be accompanied by an official health certificate issued within 10 days prior to entry into Virginia.

C. Approval numbers required for shipments of poultry and hatching eggs.

1. Each shipper of poultry or hatching eggs shall first secure an approval number from the State Veterinarian. This approval number must appear on each shipment of poultry or hatching eggs shipped into Virginia.

2. Applications for approval numbers must be made on forms provided by the State Veterinarian. Each application shall require the following information on each premises from which the poultry or hatching eggs originate:

a. The name and address of each premises owner;

b. The species and the number of birds for each on each premise, or for hatcheries hatching capacity;

c. For chickens and turkeys, and the parent flock of the hatching eggs of chickens and turkeys, the date of the most recent Pullorum-typhoid test, the total number or the percentage of positive reactions to said test, and the Pullorum-typhoid status attained; and

d. Any additional information the State Veterinarian may require.

3. Applications, when completed, must be forwarded to the official state agency, the state livestock health official, or other competent and recognized authority of the state of origin for verification, approval, and signature and then forwarded to the State Veterinarian for final approval.

4. Poultry and hatching eggs shall not be shipped into Virginia until final approval has been granted and the permit is received.

D. Chickens, turkeys, and hatching eggs of chickens and turkeys shall not be imported into Virginia unless originating exclusively from flocks or hatcheries participating in the National Poultry Improvement Plan (NPIP) or issued a permit and negative to a Pullorum-typhoid test within 30 days prior to entry.

E. Exemptions for hatching eggs and poultry, providing the hatching eggs or poultry remain subject to the State Veterinarian's Avian influenza (H5 and H7) Proclamation dated December 2009.

1. This regulation shall not apply to hatching eggs or poultry passing directly through the Commonwealth of Virginia in interstate commerce.

2. This regulation shall not apply to poultry imported into the Commonwealth of Virginia for immediate slaughter and consigned directly to a poultry processing establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services.

F. Exemptions for birds other than poultry, providing the birds remain subject to the State Veterinarian's Avian Influenza (H5 and H7) Proclamation dated December 2009.

1. This regulation shall not apply to birds other than poultry that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to birds other than poultry when the birds are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to birds other than poultry brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to birds other than poultry brought into Virginia for less than 10 days for the purpose of hunting or legal exhibition with no change of ownership.

G. This regulation shall not be construed to (i) permit the entry into Virginia of any avian species otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2VAC5-141-70. Cattle entry requirements.

A. All cattle entering Virginia must bear official identification and the official identification number must be noted on the certificate of veterinary inspection. If multiple cattle of similar breed, age and sex are listed on the certificate of veterinary inspection, sequential identification numbers may be summarized.

B. All cattle 12 months of age or older require a negative caudal fold or comparative cervical tuberculin test within 60 days prior to entry into Virginia. This requirement shall not apply to:

1. Cattle consigned directly from an accredited tuberculosis-free herd provided the accreditation number and date of the last herd test are listed on the certificate of veterinary inspection;

2. Cattle that originate from a region considered free of tuberculosis for cattle by the USDA and consigned directly to a slaughter establishment or to a USDA-approved market and from there directly to a slaughter establishment; or

3. Cattle entering Virginia for a period of 10 days or less for exhibition purposes provided they originate from a region considered free of tuberculosis for cattle by the USDA and no change of ownership occurs.

C. All cattle originating from a region not considered free of tuberculosis for cattle by the USDA require a permit and a negative caudal or comparative cervical tuberculin test within 60 days prior to entry into Virginia. This requirement shall not apply to:

1. Cattle consigned directly from an accredited tuberculosis-free herd provided the accreditation number and date of the last herd test are listed on the certificate of veterinary inspection; and

2. Cattle consigned directly to a slaughter establishment.

D. All sexually intact cattle originating from a region not considered free of brucellosis by the USDA require a permit and an individual brucellosis test within 30 days prior to entry into Virginia. Animals allowed entry under a permit will be quarantined on the premises of the consignee until retested at the consignee's expense and found negative to brucellosis no less than 45 days and no more than 120 days after entry as indicated by the permit. This requirement shall not apply to:

1. Cattle consigned directly from a certified brucellosis-free herd provided the certification number and date of the last herd test are listed on the official health certificate; and

2. Cattle consigned directly to a slaughter establishment.

E. Cattle may be imported for immediate slaughter into Virginia without a certificate of veterinary inspection provided they are consigned directly to a slaughter establishment. Official identification for all cattle under this subsection must be listed on the waybill.

F. Cattle from a farm of origin in a state adjoining Virginia and from a region therein considered free of tuberculosis and brucellosis for cattle by the USDA may enter Virginia for the purpose of sale at an approved livestock market without a certificate of veterinary inspection and without tuberculosis testing if otherwise required provided:

1. The cattle bear required individual identification; and

2. The approved livestock market maintains for at least two years and makes available to the State Veterinarian a record of the consignor of the cattle, the identification numbers of the cattle he consigns, and the buyer of the cattle.

2VAC5-141-80. Companion animal entry requirements.

A. Companion animals must be accompanied by a certificate of veterinary inspection issued within 10 days prior to entry into Virginia.

B. No dog or cat less than eight weeks of age may be imported into Virginia unless accompanied by its dam.

C. Any dog or cat greater than four months of age entering Virginia shall be currently vaccinated for rabies.

D. Exemptions.

1. This regulation shall not apply to companion animals that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to companion animals that are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to companion animals brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to companion animals brought into Virginia for less than 10 days for the purpose of hunting or legal exhibition with no change of ownership.

E. This regulation shall not be construed to (i) permit the entry into Virginia of any species of animal otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2 VAC5-141-90. Goat and sheep entry requirements.

A. All goats and sheep entering Virginia must be officially identified and the official identification number must be noted on the certificate of veterinary inspection. If multiple goats or sheep of similar breed, age, and sex are listed on the certificate of veterinary inspection, sequential identification numbers may be summarized.

B. Scrapie control.

1. No sheep or goat may be imported into Virginia that does not originate from a scrapie consistent state unless originating from a flock enrolled in the complete monitored or export monitored category of the USDA Scrapie Flock Certification Program.

2. No goat or sheep infected with scrapie, or the offspring of a goat or sheep infected with scrapie, may enter Virginia.

C. All goats and sheep 12 months of age or older imported into Virginia for dairying purposes shall be negative to a tuberculosis test within 60 days prior to entry. All other goats and sheep originating from a region considered free of tuberculosis for cattle by the USDA may enter Virginia without tuberculosis testing.

D. All goats and sheep originating from a region not considered free of tuberculosis for cattle by the USDA shall be negative to a tuberculosis test within 60 days prior to entry unless consigned directly to a livestock slaughter establishment. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

E. All sexually intact goats and sheep originating from a region not considered free of brucellosis for cattle by the USDA shall be negative to a brucellosis test within 30 days prior to entry unless consigned directly to a livestock slaughter establishment. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

F. Goats and sheep may be imported for immediate slaughter into Virginia without a certificate of veterinary inspection provided they are consigned directly to a livestock slaughter establishment or to a USDA-approved market and from there directly to a livestock slaughter establishment.

G. Goats and sheep from a farm of origin in a state adjoining Virginia and from a region therein considered free of tuberculosis and brucellosis for cattle by the USDA may enter Virginia for the purpose of sale at an approved livestock market without a certificate of veterinary inspection and without tuberculosis testing if otherwise required provided:

1. The goats and sheep bear required individual identification; and

2. The approved livestock market maintains for at least two years and makes available to the State Veterinarian a record of the consignor of the goats and sheep, the identification numbers of the goats and sheep he consigns, and the buyer of the goats and sheep.

2VAC5-141-100. Horse entry requirements.

A. All horses entering Virginia must be officially identified, and the official identification must be noted on the official health certificate.

B. Equine infectious anemia testing.

1. All horses imported into Virginia shall have been officially tested and found negative for equine infectious anemia within the past 12 months and be accompanied by an official certificate stating this information.

2. Horses that originate from infected premises in other states are not eligible for entry into Virginia except by permit at the State Veterinarian's discretion.

3. Foals six months of age or under accompanying a tested negative dam are exempt from testing.

C. Contagious equine metritis control.

1. No horse over two years of age that either originated in or has passed through premises or a country where contagious equine metritis is known to exist may enter the Commonwealth of Virginia except by permit.

2. Horses that are issued a permit immediately will be placed under quarantine and assigned a testing protocol at the consignee's expense until the State Veterinarian is satisfied that they pose no danger to the Virginia equine population.

D. Horses may enter Virginia with an official equine interstate event permit issued by another state in lieu of certificate of veterinary inspection provided the permit is not expired.

2VAC5-141-110. Other ruminant entry requirements.

A. All other ruminants entering Virginia must bear an individual identification number, and such identification number must be noted on the certificate of veterinary inspection. Identification can be a tattoo, microchip, ear tag issued by a state or federal entity, or other form of identification approved by the State Veterinarian.

B. All other ruminants originating from a region not considered free of tuberculosis for cattle by the USDA shall be negative to a tuberculosis test within 60 days prior to entry. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

C. All sexually intact other ruminants originating from a region not considered free of brucellosis for cattle by the USDA shall be negative to a brucellosis test within 30 days prior to entry. This requirement shall not apply to animals less than six months of age accompanied by their tested dam.

D. This regulation shall not be construed to (i) permit the entry into Virginia of any species of animal otherwise prohibited or restricted by any state or federal law, regulation, or directive; or (ii) contravene additional entry requirements imposed by any state or federal law, regulation, or directive.

2VAC5-141-120. Swine entry requirements.

A. All swine entering Virginia must bear an identification number, and the identification number must be noted on the certificate of veterinary inspection.

B. Commercial swine entry requirements.

1. Commercial swine originating from a herd or region that is considered free from brucellosis and pseudorabies by a federal program or a state program approved by the State Veterinarian may enter Virginia without further testing requirements provided a statement indicating the region is considered free from brucellosis by a federal or state program or verification of herd participation in the federal or state program is indicated on the certificate of veterinary inspection.

2. Sexually intact commercial swine over four months of age not originating from a herd or region considered free of brucellosis by a federal program or a state program approved by the State Veterinarian must be negative to a brucellosis test within 30 days prior to entry into Virginia.

3. Commercial swine not originating from herd or region that is considered free from pseudorabies by a federal program or a state program approved by the State Veterinarian shall be individually tested and negative to a pseudorabies test within 30 days prior to entry into Virginia. Sexually intact swine shall be quarantined at the premises of destination until retested between 30 and 60 days after importation at the consignee's expense.

4. No commercial swine vaccinated for pseudorabies shall be imported into Virginia unless under permit for direct slaughter.

C. Noncommercial swine entry requirements.

1. Noncommercial swine originating from herds considered free from brucellosis and pseudorabies by a federal program or a state program approved by the State Veterinarian may enter Virginia without further testing requirements provided verification of herd participation in the federal or state program is indicated on the certificate of veterinary inspection and the commercial swine have not had contact with feral swine.

2. Sexually intact noncommercial swine over four months of age not from a herd considered free from brucellosis by a federal program or a state program approved by the State Veterinarian must be negative to a brucellosis test within 30 days prior to entry into Virginia.

3. Noncommercial swine not from a herd considered free from pseudorabies by a federal program or a state program approved by the State Veterinarian shall be negative to a pseudorabies test within 30 days prior to entry into Virginia. Sexually intact swine shall be quarantined at the premises of destination until retested between 30 and 60 days after importation at the consignee's expense.

4. No noncommercial swine vaccinated for pseudorabies shall be imported into Virginia unless under permit at the discretion of the State Veterinarian and subject to any restrictions he deems necessary.

D. Slaughter swine entry requirements.

1. No slaughter swine known to be infected with or exposed to pseudorabies and no swine vaccinated for pseudorabies may enter Virginia unless:

a. It is shipped directly to a slaughter establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services under permit;

b. It is shipped in a sealed vehicle or individually identified on the permit; and

c. The conveyance transporting the swine into Virginia is cleaned and disinfected after the swine is off-loaded but prior to the conveyance leaving the slaughter establishment.

2. Any slaughter swine not known to be infected with or exposed to pseudorabies may enter Virginia without a certificate of veterinary inspection, but only if it is accompanied by a waybill, bill of lading, bill of sale, or other document that identifies the swine to the farm of origin and only if it is sent directly to:

a. A slaughter establishment that is approved and inspected by the USDA or by the Virginia Department of Agriculture and Consumer Services; or

b. A USDA-approved market and from there directly to a recognized slaughter establishment.

E. Commercial swine intended for feeding purposes and not intended for breeding purposes from a farm of origin in a state adjoining Virginia and from a region therein considered free of pseudorabies by a federal or state program approved by the State Veterinarian may enter Virginia without a certificate of veterinary inspection.

2VAC5-141-130. Primate entry requirements.

A. All primates imported into Virginia require a certificate of veterinary inspection issued within 10 days prior to entry.

B. All primates imported into Virginia must be microchipped, and such microchip number must be noted on the certificate of veterinary inspection.

C. The official health certificate shall include a statement attesting to the fact that the veterinarian has carefully examined the oral mucosa of the primate and has found no evidence of disease lesions or inflammatory processes.

D. Tuberculosis testing requirements.

1. Primates imported into Virginia shall have a negative tuberculosis test performed by an accredited veterinarian within 30 days prior to entry. The official health certificate must indicate the kind and amount of tuberculin used, the date and hour of injection, and the date and hour of reading.

2. Primates that have been associated with a colony where there have been other primates showing response to the tuberculin test shall not be eligible for entry into Virginia unless and until all primates in the colony shall have passed two consecutive tuberculosis tests not less than 30 days apart.

E. Exceptions.

1. This regulation shall not apply to primates that are passing directly through Virginia to another state in interstate commerce.

2. This regulation shall not apply to primates that are kept properly under control by their owner or custodian when passing through Virginia to another state.

3. This regulation shall not apply to primates brought into Virginia by a resident or by a resident of another state who intends to make his residence in Virginia, except if brought into the Commonwealth with the intent of offering it for public adoption, transfer, sale, trade, or promotional incentive.

4. This regulation shall not apply to primates brought into Virginia for less than 10 days for the purpose of legal exhibition with no change of ownership.

FORMS (2VAC5-141)

Poultry Permit Packet (eff. 01/11).

DOCUMENTS INCORPORATED BY REFERENCE (2VAC5-141)

Avian Influenza (H5 and H7) Proclamation, eff. December 4, 2009, Department of Agriculture and Consumer Services, State Veterinarian's Office, P.O. Box 1163, Richmond, VA 23218.

Title of Regulation: 2VAC5-405. Regulations for the Application of Fertilizer to Nonagricultural Lands (adding 2VAC5-405-10 through 2VAC5-405-110).

Statutory Authority: § 3.2-3602.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: April 1, 2011.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 3.2-3602.1 of the Code of Virginia authorizes and requires the Board of Agriculture and Consumer Services to adopt regulations to certify the competency of contractor-applicators and licensees who apply fertilizer to nonagricultural lands.

Purpose: This regulation is intended to address the growing concern over the environmental impact of off-target applications of fertilizer on impervious surfaces that result primarily from lawn care activities. The Board of Agriculture and Consumer Services is required to promulgate this regulation, which the General Assembly has deemed necessary in order to minimize the potential environmental impact that may result from improper use and over application of fertilizer on nonagricultural lands. Such impact is of particular concern with respect to water quality. This regulation seeks to protect the health and safety of citizens and improve the water quality in streams and rivers of the Commonwealth, as well as the Chesapeake Bay, through the establishment of training, certification, and recordkeeping requirements that will ultimately impact the flow of excess nutrients into those bodies of water. At present, there are no such training, certification, and recordkeeping requirements for contractor-applicators or licensees.

Substance: The proposed regulation sets forth the application process to become a certified fertilizer applicator, the general knowledge requirements for certified fertilizer applicators, the core areas on which applicants for certification will be tested, and the certification renewal process. The proposed regulation also sets forth the qualifications for trained applicators and the recordkeeping requirements for the application of fertilizer. The proposed regulation also prescribes the penalties that may be assessed for violations of the regulation.

Issues: The primary advantage of this regulation to the public, the department, and the Commonwealth is that it will serve to address the growing concern over the environmental impact of off-target applications of fertilizer on impervious surfaces that result primarily from lawn care activities. The expected reduction in excess nutrient run-off will have a beneficial impact on the quality of the water in Virginias streams, lakes, and rivers and, ultimately, on the environmental health of the Chesapeake Bay. This regulation will not pose a disadvantage to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 686 of the 2008 Acts of the Assembly, the Board of Agricultural and Consumer Services (Board) proposes to promulgate new regulations for the certification of fertilizer applicators. Specifically, these regulations will establish:

• The application process for becoming a certified fertilizer applicator,

• Exemptions from the requirements of these regulations for certain categories of individuals,

• Core areas of testing for certification applicants,

• The certification renewal process,

• Supervision requirements for noncertified individuals who apply fertilizer to nonagricultural lands,

• Recordkeeping requirements for fertilizer applicators and

• The $250 civil penalty that will be assessed for to individuals who offer their services as certified fertilizer applicators without first obtaining Board certification or who supervise the application of fertilizer to nonagricultural land when they have not been certified by the Board.

Result of Analysis. There is insufficient information to ascertain whether the benefits of this proposed certification program will outweigh its costs.

Estimated Economic Impact. In 2008, the General Assembly passed a bill that requires the Board to set training requirements and proper nutrient management practices for individuals who apply fertilizer to nonagricultural land. The Board now proposes to promulgate new regulations to fulfill these legislative requirements.

The proposed regulations do not contain specifics for the training that will be required for fertilizer applicators. Instead, these regulations give the Commissioner of Agricultural and Consumer Services the authority to approve courses of training and allow individuals who have complete a non-approved training program that is comparable to those that are approved to petition for program approval. The Virginia Department of Agricultural and Consumer Services (VDACS) reports that no training courses have been approved yet and that the Board is still contemplating the appropriate scope of the training that will be required. These regulations will specifically require two hours of continuing education every two years which VDACS estimates will cost approximately $100 per certificate holder and that the training for individual fertilizer applicators will cost approximately $50. Although VDACS does not know yet how many hours of initial training will be required for certified fertilizer applicators, they estimate that this training will cost approximately $500 per person. Certification is valid for four years from the date it is issued and then must be renewed by making application to VDACS and providing proof of completed continuing education.

Pursuant to Chapter 686, affected individuals will have 12 months after the effective date of these regulations to comply with the mandates of both the regulations and the relevant legislative code. After that point, and with three exceptions, any business that applies fertilizer to nonagricultural land will have to employ at least one certified fertilizer applicator or contract with a certified fertilizer applicator for his services. Other employees who have gone through individual applicator training will be able to apply fertilizer independent of the supervision of a certified fertilizer applicator. Employees who have not undergone the individual applicator training will only be able to work under the direct supervision of a certified fertilizer applicator. These regulations allow three exemptions from these requirements; individuals will not have to become certified if 1) they are conducting research in laboratories or field test plots involving fertilizer, 2) they are employees and only apply fertilizer to land belonging to their employer or 3) they already have a turf and landscape certification from the Department of Conservation and Recreation. After the point in time that landscaping businesses and any other business that applies fertilizer would be required to comply with these regulations, VDACS will assess a $250 fine to anyone who offers their services as certified fertilizer applicators without first obtaining Board certification or who supervises the application of fertilizer to nonagricultural land when they have not been certified by the Board. VDACS will also assess the $250 fine to any business that does not comply with the recordkeeping requirements of these regulations.

These regulations, and the legislation that mandates them, will likely increase costs for businesses that offer services that include spreading fertilizer on nonagricultural land. These costs will likely include higher wage costs since they will be required by law to have at pay for the services of a certified fertilizer applicator. This will allow them less flexibility to hire the mix of employees that they believe will allow them to provide services in the most efficient way possible. They will likely also incur recordkeeping costs because these proposed regulations will require businesses to keep very specific records of any jobs that include the application of fertilizer for at least three years. These records will have to include:

• The name, mailing address and phone number of the customer as well as the address where the fertilizer was applied,

• Name of the person applying the fertilizer of supervising the application,

• Day, month and year of the application,

• Weather conditions at the start of the application,

• Acreage, area, square footage or number of plants treated,

• Analysis of fertilizer applied,

• Amount of fertilizer used by weight of volume and

• Type of application equipment used.

The aim of these proposed regulations is to reduce water pollution that can be traced to the misapplication and over-application of fertilizer to nonagricultural lands. Whether the benefits of these regulations outweigh the costs will largely depend on whether the forgone costs of prevented pollution are greater in magnitude than the costs that will be imposed on the affected businesses and individuals.

Businesses and Entities Affected. VDACS reports that there are approximately 1,000 individuals who have VDACS issued permits that allow them to distribute and/or apply fertilizer. Older information from the Virginia Employment Commission (VEC) indicates that there were approximately 2,500 landscaping businesses in the Commonwealth as of the fourth quarter of 2007. This information from the VEC, although older, indicates that there is likely a large population of affected entities who do not currently hold permits from VDACS and may not know that they will be subject to these proposed regulations. Most of the affected businesses likely meet the requirements to be classified as small businesses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. The costs that businesses will likely incur to comply with this legislatively mandated certification program may cause some of these businesses to close, particularly if they are only marginally profitable. The landscaping businesses that remain may choose to employ fewer people because their costs will be higher.

Effects on the Use and Value of Private Property. This regulatory action will likely increase the costs for businesses that apply fertilizer to nonagricultural lands. Other factors held constant, these increasing costs will likely raise the price of landscaping services and decrease the quantity demanded for these services. These likely changes in business costs and quantity demanded mean that the profits, and therefore the value, of affected landscaping businesses may decrease by a small amount after these certification requirements go into effect.

Small Businesses: Costs and Other Effects. Affected small businesses in the Commonwealth will incur costs for training and testing as well as for complying with recordkeeping requirements.

Small Businesses: Alternative Method that Minimizes Adverse Impact. VDACS can minimize the adverse impact of this certification program by only requiring training that is absolutely necessary to meet the legislatures goal of reducing pollution caused by nonagricultural application of fertilizer.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

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

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

Pursuant to Chapter 686 of the 2008 Acts of the Assembly, the proposed regulations establish requirements for certification of fertilizer applicators. Specifically, the proposed regulations establish: (i) the application process for becoming a certified fertilizer applicator; (ii) exemptions from the requirements of these regulations for certain categories of individuals; (iii) core areas of testing for certification applicants; (iv) the certification renewal process; (v) supervision requirements for noncertified individuals who apply fertilizer to nonagricultural lands; (vi) recordkeeping requirements for fertilizer applicators; and (vii) the $250 civil penalty that will be assessed to individuals who offer their services as certified fertilizer applicators without first obtaining board certification or who supervise the application of fertilizer to nonagricultural land when they have not been certified by the board.

CHAPTER 405
REGULATIONS FOR THE APPLICATION OF FERTILIZER TO NONAGRICULTURAL LANDS

2VAC5-405-10. Definitions.

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

"Accident" means an unexpected, undesirable event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Agricultural activity" means any activity used in the production of food and fiber for commercial purposes, including farming, feedlots, grazing livestock, poultry raising, dairy farming, and aquaculture activities.

"Agricultural products" means any livestock, aquacultural, poultry, horticultural, floricultural, viticultural, silvicultural, or other farm crops produced for commercial purposes.

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

"Board-approved training" means training offered by a state agency or private entity approved by the board that includes, at a minimum, study and review of course material pertaining to the application of fertilizer on nonagricultural land. Such training shall include testing and certification of the individual's successful completion of the training.

"Certificate" means the document issued to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certification" means the recognition granted by the board to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certified fertilizer applicator" means any individual who has successfully completed board-approved training.

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

"Contractor-applicator" means any person required to hold a permit to distribute or apply any fertilizer pursuant to § 3.2-3608 of the Code of Virginia.

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

"Distribute" means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter the chemical or physical characteristics of a fertilizer, or to offer for sale, sell, barter, warehouse, or otherwise supply fertilizer in the Commonwealth.

"Fertilizer" means any substance containing one or more recognized plant nutrients that is used for its plant nutrient content and that is designed for use, or claimed to have value, in promoting plant growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone, and other products exempted by regulation.

"Incident" means a definite and separate occurrence or event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Individual applicator training" means training provided to individuals by a certified fertilizer applicator or training offered to individuals by any state agency or private entity approved by the board that includes, at a minimum, a study and review of fertilizer equipment calibration; handling of accidents involving fertilizer; proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer; and safety and health concerns related to fertilizer, including proper use of personal protective equipment.

"Label" means the display of all written, printed, or graphic matter upon the immediate container or a statement accompanying a fertilizer, including an invoice.

"Licensee" means the person who receives a license to distribute any fertilizer under the provisions of § 3.2-3606 of the Code of Virginia.

"Nonagricultural land" means land upon which no agricultural activities are conducted and from which no agricultural products are derived.

"Noncertified fertilizer applicator" means either a trained applicator or an untrained applicator, neither of whom has received certification as a certified fertilizer applicator.

"Trained applicator" means an individual who is not a certified fertilizer applicator but who has successfully completed individual applicator training.

"Under the direct on-site supervision of" means the act or process whereby the application of a fertilizer is made by an individual acting under the instructions and control of a certified fertilizer applicator who is responsible for the actions of that person and who is physically present on the land upon which the fertilizer is being applied.

"Untrained applicator" means an individual who is not seeking or has not successfully completed individual applicator training.

"Use of fertilizer" includes application or mixing and handling, transfer, or any act with respect to a particular fertilizer that is consistent with the label directions for that particular fertilizer.

2VAC5-405-20. General requirements.

A. The board authorizes the commissioner to approve all courses of training required in this regulation.

B. All licensees and contractor-applicators who apply fertilizer for commercial purposes to nonagricultural land shall:

1. Employ or retain the services of a certified fertilizer applicator.

2. Apply fertilizer at rates, times, and methods that are consistent with standards and criteria for nutrient management promulgated pursuant to § 10.1-104.2 of the Code of Virginia.

3. Ensure that fertilizer applications are conducted as prescribed by board-approved training or individual applicator training.

4. Comply with all applicable recordkeeping requirements in this regulation.

C. Certified fertilizer applicators may apply fertilizer to nonagricultural land for commercial purposes.

D. The following individuals may apply fertilizer to nonagricultural land for commercial purposes provided they are under the control and instruction of a certified fertilizer applicator who is responsible for the actions of those individuals:

1. Trained applicators. The certified fertilizer applicator does not need to be physically present on the land upon which trained applicators are applying fertilizer. Trained applicators are not authorized to supervise the application of fertilizer by untrained applicators.

2. Untrained applicators provided that they are under the direct on-site supervision of a certified fertilizer applicator.

3. Individuals engaged in training required for certification as a certified fertilizer applicator provided that the individuals are under the direct on-site supervision of a certified fertilizer applicator.

2VAC5-405-30. Qualifications for certification as a certified fertilizer applicator.

All persons desiring certification as certified fertilizer applicators shall successfully complete board-approved training.

2VAC5-405-40. Application process.

A. The application to become a certified fertilizer applicator shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of successful completion of board-approved training.

B. Any individual desiring certification as a certified fertilizer applicator who has completed a comparable course of training not yet approved by the board may petition the commissioner to approve the course. The petition shall include verifiable documentation of successful course completion.

C. Any individual who is denied certification as a certified fertilizer applicator may appeal the decision to the board through an appeal process that is compliant with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). The procedure for appealing a decision shall be specified by the commissioner and shall be made available to the person denied certification.

D. Upon certification, a card will be issued to the certified fertilizer applicator, which will remain valid for four years from the date of issuance. A certified fertilizer applicator may request a duplicate of the certification card if the card has been lost, stolen, mutilated, or destroyed. The department shall issue a duplicate card to the certified fertilizer applicator upon payment of the costs of duplication.

2VAC5-405-50. Exemptions from certification.

The following individuals are exempt from certification:

1. Individuals conducting research in laboratories or field test plots involving fertilizers.

2. Individuals who use fertilizer or supervise the use of fertilizer as part of their duties only on nonagricultural land owned or leased by their employers.

3. Individuals holding turf and landscape certification from the Department of Conservation and Recreation as nutrient management planners.

2VAC5-405-60. General knowledge requirements for certified fertilizer applicators; continuing education.

A. All applicants for certification as a certified fertilizer applicator shall demonstrate practical knowledge of the principles and practices of the environmentally safe use of fertilizer.

B. Applicants shall be tested on their knowledge and qualifications concerning the use of fertilizer and the handling of fertilizer in the board-approved training. Testing will be based on problems and situations in the following core areas:

1. Proper nutrient management practices such as allowable rate of application for nutrients for various types of vegetation and determining quantity of product to apply based on nutrient analysis;

2. Timing of application during appropriate seasons for various types of vegetation and restrictions on intervals for reapplication;

3. Soil analysis techniques and interpretation of soil analysis results such as proper frequency and depth of sampling and determining appropriate rates of application based on soil analyses;

4. Equipment calibration techniques and procedures for liquid and dry fertilizer applicators and determination of size of application areas;

5. Understanding and interpreting fertilizer labels;

6. Proper handling and appropriate notification procedures of accidents and incidents;

7. Proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer;

8. Managing applications near impervious surfaces such as streets, driveways, sidewalks, or paved ditches, as well as near water bodies to avoid off-target applications;

9. Safety and health, including proper use of personal protective equipment; and

10. Recordkeeping requirements of this regulation.

C. Continuing education requirement. Certified fertilizer applicators shall complete a minimum of two hours of course work every two years on at least one of the following:

1. Proper nutrient management practices;

2. Timing of fertilizer application;

3. Soil analysis techniques and interpretation;

4. Equipment calibration;

5. Understanding and interpreting fertilizer labels; or

6. Management of fertilizer applications near impervious surfaces.

The courses may be offered by any state agency or private entity recognized by the board.

2VAC5-405-70. Renewal of certification.

A. Every certification shall be valid for a period of four years. Upon expiration of certification, the certified fertilizer applicator's certificate shall become invalid and the holder shall not be allowed to offer his services as a certified fertilizer applicator.

B. Any certified fertilizer applicator who desires to renew his certification shall submit an application for renewal. The application shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of satisfactory compliance with the continuing education requirements in 2VAC5-405-60.

C. The application for certification renewal shall be submitted within the 60 days immediately prior to or the 60 days immediately following the expiration of the certification. Any certified fertilizer applicator who desires to renew his certification but fails to do so within this timeframe shall be subject to the application process requirements of 2VAC5-405-40. The 60 days following expiration of the certification is a grace period to allow certified fertilizer applicators to renew their certification. A certified fertilizer applicator whose certification has expired shall not offer his services as a certified fertilizer applicator during this 60-day grace period.

2VAC5-405-80. Qualifications for trained applicators.

All noncertified applicators desiring to apply fertilizer for commercial purposes on nonagricultural land while not under the direct on-site supervision of a certified fertilizer applicator shall successfully complete individual applicator training.

2VAC5-405-90. Recordkeeping requirements for trained applicators.

A. Licensees and contractor-applicators subject to this regulation shall maintain training records for each trained applicator employed by the licensee or contract-applicator.

B. The training record shall include (i) the name of the trained applicator; (ii) the name of the state agency or private entity approved by the board or the name and affiliation of the certified fertilizer applicator providing the training; (iii) the type of training received; and (iv) the date when the trained applicator successfully completed individual applicator training.

C. The training records shall be maintained for as long as the trained applicator continues to apply fertilizer on nonagricultural land on behalf of the licensee or contractor-applicator and for three years following separation and shall be available for inspection by the commissioner.

2VAC5-405-100. Recordkeeping requirements for the application of fertilizer.

Licensees and contractor-applicators shall maintain records of each application of fertilizer to nonagricultural land for at least three years following the application. These records shall be available for inspection by the commissioner. Each record shall contain the:

1. Name, mailing address, and telephone number of customer, as well as address of application site if different from customer's mailing address;

2. Name of the person making or supervising the application;

3. Day, month, and year of application;

4. Weather conditions at the start of the application;

5. Acreage, area, square footage, or plants treated;

6. Analysis of fertilizer applied;

7. Amount of fertilizer used, by weight or volume; and

8. Type of application equipment used.

2VAC5-405-110. Violations and penalties for noncompliance.

A. Any individual who offers his services as a certified fertilizer applicator or who supervises the application of any fertilizer on nonagricultural land without obtaining prior registration certification from the commissioner shall be assessed a penalty of $250.

B. Violations of the provisions of these regulations shall be handled in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Any penalties assessed for violations of this regulation shall be handled in accordance with a board-approved administrative process.

D. In addition to any monetary penalties provided in this section, certified fertilizer applicators who violate any provision of this regulation may also be subject to the provisions of § 3.2-3621 of the Code of Virginia regarding the cancellation of certification.

Title of Regulation: 5VAC5-40. Administration of the Office of the Clerk of the Commission (amending 5VAC5-40-20).

Statutory Authority: §§ 12.1-13 and 13.1-1062 of the Code of Virginia.

Public Hearing Information: Public hearing scheduled upon request.

Public Comment Deadline: February 16, 2011.

Agency Contact: Joel Peck, Clerk of the Commission, State Corporation Commission, 1300 East 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 proposed amendments to 5VAC5-40-20 place in regulation the schedule outlined in subdivision B 2 of § 13.1-1062 of the Code of Virginia, which permits the State Corporation Commission to determine the schedule for assessing limited liability companies in Virginia. Currently, limited liability companies are assessed annually in July, and assessments must be paid by the end of September. The State Corporation Commission's Order to Take Notice and proposed regulations set forth a schedule for assessing each limited liability company annually during the month the limited liability company was originally organized.

AT RICHMOND, JANUARY 10, 2011

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. CLK-2010-00009

Ex Parte: In re: annual registration fees
for limited liability companies

ORDER TO TAKE NOTICE

Section 13.1-1062 of the Code of Virginia requires each domestic limited liability company and each foreign limited liability company registered to transact business in the Commonwealth to pay an annual registration fee of $50, assessed in accordance with a schedule set by the State Corporation Commission ("Commission"). The schedule shall be in accordance with subsection B of § 13.1-1062. That subsection requires the Commission to set, by order, the schedule for assessment of limited liability companies organized or registered to transact business in the Commonwealth.

The Office of the Clerk of the Commission ("Clerk") has reported to the Commission that an assessment schedule for limited liability companies based on the date of organization or registration to transact business in Virginia is more efficient for the conduct of the Commission's operations and, specifically, will facilitate the use of electronic commerce for increased customer service. The Clerk has recommended that, if the new schedule based on anniversary dates is adopted, registration fee assessments should begin in May 2011 for limited liability companies that were organized or registered to transact business in the month of July, and continue on a monthly basis thereafter. Payment of assessments under the new schedule for limited liability companies organized or registered to transact business in the months of January through June will not be due until 2012.

NOW THE COMMISSION, based on information supplied by the Clerk, proposes to adopt a regulation revising Rule 5 VAC 5-40-20, with a proposed effective date of April 30, 2011.

Accordingly, IT IS ORDERED THAT:

(1) The proposed revised regulation, entitled "Assessment of limited liability companies," is appended hereto and made a part of the record herein.

(2) Comments or requests for a hearing on the proposed regulation must be submitted in writing to Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218, on or before February 16, 2011. Requests for hearing shall state why a hearing is necessary and why the issues cannot be adequately addressed in written comments. All correspondence shall contain a reference to Case No. CLK-2010-00009. Interested persons desiring to submit comments or request a hearing electronically may do so by following the instructions available at the Commission's website: http://www.scc.virginia.gov/case.

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

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

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 proposed regulation, to interested parties as he may designate.

5VAC5-40-20. Assessment of limited liability companies.

Each year, the commission shall ascertain from its records each domestic limited liability company and each foreign limited liability company registered to transact business in the Commonwealth, as of July 1 of each year the first day of the second month preceding the month in which it was organized or registered to transact business in the Commonwealth, and shall assess against each such limited liability company the annual registration fee imposed in subsection A of § 13.1-1062 of the Code of Virginia, and, except as provided in subsection C of § 13.1-1062, that each such limited liability company shall pay the assessment due into the state treasury on or before September 30 in each year after the calendar year in which it was formed the last day of the 12th month next succeeding the month in which it was organized or registered to transact business in the Commonwealth, and by such date in each year thereafter; provided that the initial annual registration fee to be paid by a domestic limited liability company created by conversion shall be due in the year after the calendar year in which it converted.

Each limited liability company will be sent a notice of assessment approximately two months prior to its anniversary month of formation or registration. The assessment payment is due by the last day of the anniversary month of formation or registration. For example, a limited liability company with an anniversary month of formation or registration of July will be assessed an annual registration fee on the preceding May 1, and payment of the fee will be due on or before July 31.

Title of Regulation: 6VAC20-270. Regulations Relating to Campus Security Officers (adding 6VAC20-270-10 through 6VAC20-270-130).

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

Effective Dates: January 31, 2011, through January 30, 2012.

Agency Contact: Lisa McGee, Regulatory Manager, Department of Criminal Justice Services, P.O. Box 1300, Richmond, VA 23218, telephone (804) 371-2419, FAX (804) 786-6377, or email lisa.mcgee@dcjs.virginia.gov.

Preamble:

The board and the department are required by § 9.1-102 (49) of the Code of Virginia to establish minimum standards for (i) employment, (ii) job-entry and in-service training curricula, and (iii) certification requirements for campus security officers. At the present time there are no regulations in place regarding campus security officers. As a result the department is unable to enforce training standards that are necessary for certification. The issue of safety and security on college campuses was addressed in the 2006 Crime Commission Study on Campus Safety.

College populations represent a large concentration of students between the ages of 18-25 years with limited supervision and life experience. In terms of homeland security, campuses are identified as "soft targets" and are frequently targeted by domestic and foreign terrorists. Campuses also house volatile materials and research facilities that are also targeted by radical elements in society. Campuses also host large stadium events and concerts, which are potential targets for terrorism and riots. Most campuses are also open access facilities to the public and relatively difficult to secure and lockdown.

Campus Security Officers are primary first responders to incidents of crime and violence on campus. Currently, little or no standardized training for Campus Security Officers exists. Additionally, there is not any established standard employment criteria  or background check requirements. The regulations will address these issues.

CHAPTER 270
REGULATIONS RELATING TO CAMPUS SECURITY OFFICERS

6VAC20-270-10. Definitions.

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

"Approved instructor" means a person who has been approved by the department to instruct the Campus Security Officer Training Course.

"Approved training" means training approved by the department to meet training standards.

"Approved training session" means a training session that is approved by the department for the specific purpose of training campus security officers.

"Board" means the Criminal Justice Services Board.

"Campus Security Officer" means any person employed by or contracted to a college or university for the sole purpose of maintaining peace and order and who is primarily responsible for ensuring the safety, security, and welfare of students, faculty, staff, and visitors. Certified law enforcement officers as defined in § 9.1-101 are not included in this definition.

"Campus Security Contact Person" is the person designated by the college, university or private security services business to serve as the point of contact between the department and the college, university or private security services business on matters concerning the certification of campus security officers.

"Certification" means that a qualified person has met the minimum compulsory requirements mandated for a campus security officer.

"College or university" means an institution of higher education created to educate and grant certificates or degrees in a variety of subjects.

"Contracted" means a person employed by a licensed private security services business under contract to perform the functions of a campus security officer.

"Date of hire" means the date an employee is hired to provide campus security officer services for a college, university or private security services business, and whom the department must regulate.

"Department" means the Department of Criminal Justice Services or any successor agency.

"Director" means the chief administrative officer of the department.

"Employee" means a person providing campus security services hired directly by the employing college or university, or a person hired by a licensed private security services business supplying campus security services to the college or university on a contract basis.

"Entry-level training requirement" means the compulsory modules, determined by the department, to comprise the necessary training required as a basis for certification.

"Faculty" means any of the divisions or comprehensive branches of learning at a college or university, or any individual within such a division.

"In-service training requirement" means the compulsory in-service training standards adopted by the board for campus security officers.

"Private security services business" or "PSS" means any person engaged in the business of providing, or who undertakes to provide security officers to another person under contract, express or implied as defined in § 9.1-138 of the Code of Virginia. For the purpose of this chapter, private security services business is utilized for businesses that contract campus security services to a college or university.

"Special events" means those events at which large numbers of people gather on campus or at college or university facilities creating a need for additional or specialized security actions.

"This chapter" means the Regulations Relating to Campus Security Officers.

"Training certification" means verification of the successful completion of any compulsory minimum training requirements established by this chapter.

"Training requirement" means any entry-level or in-service training or retraining standard established by this chapter.

6VAC20-270-20. Exemption from certification.

A. Contracted personnel who hold a valid private security services registration as an unarmed or armed security officer as defined under § 9.1-138 are exempt from these training standards provided that their duties are limited to security at special events.

B. Part-time officers employed or contracted to any one college or university, or any combination of colleges or universities in Virginia, are exempt from the provisions of this chapter provided that the aggregate hours worked by the officer during the calendar year do not exceed 120 hours.

6VAC20-270-30. Initial certification and training requirements.

A. In addition to meeting all the hiring requirements of the employing college, university or private security services business supplying campus security services to the college or university, all campus security officers are required to meet the following minimum certification and training requirements. Such person shall:

1. Be a United States citizen or legal resident eligible under United States law for employment in the United States.

2. Undergo a background investigation to include a criminal history inquiry. Results of such inquiries shall be examined by the employer.

3. Possess a high-school diploma, General Education Diploma or other accepted secondary school credential.

4. Be a minimum of 18 years of age.

5. Possess a valid driver's license issued by his or her state of residence if required by the duties of office to operate a motor vehicle.

6. Successfully complete or hold valid certification of first aid training. The level and substance of such training shall be at the discretion of the employing college, university or licensed PSS business.

7. Complete the online course Introduction to Incident Command System as provided by the Emergency Management Institute at the Federal Emergency Management Agency (FEMA).

8. Comply with compulsory minimum entry-level training requirements approved by the board.

a. Every campus security officer hired before January 31, 2011, is required to comply with the compulsory minimum training standards within 365 days of the effective date of this regulation. Every campus security officer hired on or after January 31, 2011, is required to comply with the compulsory minimum training standards within 180 days of the date of hire.

b. The compulsory minimum training shall consist of modules of content developed and approved by the department. Such training shall include but not be limited to:

(1) The role and responsibility of campus security officers;

(2) Relevant state and federal laws;

(3) School and personal liability issues;

(4) Security awareness in the campus environment;

(5) Mediation and conflict resolution;

(6) Disaster and emergency response; and

(7) Behavioral dynamics.

c. The compulsory minimum training shall include a test for each module approved and provided by the department with a minimum passing grade of 70% on each module. Any officer not receiving a minimum grade of 70% on each module, shall, at the discretion of the approved instructor, be given remedial training and thereafter the opportunity to be tested again on the questions incorrectly answered on the first attempt. If this option is utilized, the initial test score shall be recorded with an asterisk followed by the signature of the approved instructor who provided the remedial training. The approved instructor's signature shall be accepted as verification that the officer successfully answered enough of the questions missed on the initial test to achieve a passing score of 70%. A second unsuccessful test, subsequent to remedial training, shall result in a grade of "FAIL" after which the officer may, at the discretion of the employing college, university or PSS business be enrolled in a future session for the failed module.

9. Submit to the department a properly completed and signed application for certification from the employing college, university or PSS business, in a format provided by the department.

B. All costs associated with meeting the certification requirements are the responsibility of the employer.

C. The department may grant an extension of the time limit for completion of the compulsory minimum training and certification standards under the following documented conditions:

1. Illness or injury;

2. Military service;

3. Special duty required and performed in the public interest;

4. Administrative leave, full-time educational leave or suspension pending investigation or adjudication of a crime; or

5. Any other reasonable situation documented by the employing college, university or PSS business.

6VAC20-270-40. Certification procedures.

A. The department will notify the applicant for campus security officer certification and the designated campus security contact person for the employing college, university or PSS business, that the campus security officer is certified in accordance with this regulation after the following conditions are met:

1. Notification to the department by the designated campus security contact person, that the applicant for campus security officer certification has successfully met the following compulsory minimum entry-level requirements:

a. The total of modules that comprise the entry-level Campus Security Officer training and as required by this chapter;

b. Complete background investigation as required by this chapter;

c. First-aid training consistent with the standard set by the employing college, university or PSS business; and

d. Completion of the online course Introduction to Incident Command System as provided by the Emergency Management Institute at the Federal Emergency Management Agency (FEMA) and as indicated by the department.

2. Receipt by the department of application for certification, signed by the designated contact person for the employing college, university or PSS business.

B. If a campus security officer seeking certification is denied by the department, the department will notify the designated campus security person for the employing college, university or PSS business, and the applicant in writing, outlining the basis for the denial and the process for appeal of the decision to deny.

C. The department shall maintain a current database of certified campus security officers as well as relevant training records.

D. Certification shall be for a period not to exceed 24 months.

6VAC20-270-50. Suspension of certification.

A. Campus security officers will only be certified while employed by a college, university, or a PSS business while assigned to a college or university.

B. Certification of the campus security officer will be suspended upon the termination of the officer's employment with the college, university, or PSS business. For the purposes of this chapter, a previously certified campus security officer's status shall be changed to suspended, upon the department receiving notice that the officer is no longer employed by a college, university, or PSS business.

C. Upon obtaining employment at another college, university or PSS business, a previously certified campus security officer will not be required to repeat the entry-level campus security officer training, provided the officer's employment starts within the two-year period of the previous certification.

6VAC20-270-60. Training waiver for experienced officers.

A. Subject to the approval of the department, an entry-level training waiver may be obtained for experienced campus security officers with a minimum of five years of experience, who successfully complete the module tests with a minimum score of 70% on each test. The application for a waiver shall be submitted on the form prescribed by the department and must contain the signature of the designated campus security officer contact person.

B. If any module test grade is less than 70%, the experienced officer shall be required to complete the prescribed entry-level training as outlined in this chapter.

6VAC20-270-70. Educational requirement waiver for experienced officers.

Subject to the approval of the department, an educational requirement waiver may be obtained for campus security officers who have been continuously employed in that capacity at a college, university, or PSS business under contract at a college or university for a minimum of five years prior to January 31, 2011.

6VAC20-270-80. Standards of conduct.

A campus security officer shall:

1. Conform to all requirements pursuant to the Code of Virginia and this chapter;

2. Maintain at all times with the employing college, university or PSS business, a valid mailing address. Written notification of any address change shall be submitted to the campus security contact person for the employing college, university or PSS business, no later than 10 days after the effective date of the change;

3. Inform the designated campus security contact person for the employing college, university or PSS business in writing, 72 hours or the beginning of the next work day, whichever comes first, after an arrest for any felony or misdemeanor;

4. Inform the designated campus security contact person for the employing college, university or PSS business in writing, within 72 hours or the beginning of the next work day, whichever comes first, after having been convicted of any felony or misdemeanor;

5. Inform the designated campus security contact person for the employing college, university or PSS business in writing within 10 days after having been found guilty by any court or administrative body of competent jurisdiction to have violated the campus security officer statutes or regulations of that jurisdiction.

6VAC20-270-90. Recertification requirements.

A. Applications for recertification must be received by the department prior to certification expiration. It is the responsibility of the campus security officer employer to ensure recertification applications are filed with the department. A valid certification as a campus security officer is required in order to remain eligible for employment as a campus security officer. If the campus security officer has met the required in-service training requirements, and the required in-service training documents and recertification application are on file with the department prior to expiration, the campus security officer is deemed recertified and may continue to operate in the campus security officer capacity.

B. Applicants for recertification must have completed 16 hours of in-service training during each two-year period after initial certification. The in-service training must be directly related to the duties of the campus security officer, to include a legal update and other relevant topics approved by the department.

C. Individuals whose certification is expired shall comply with the initial certification requirements set forth in this chapter.

D. The department, subject to its discretion, retains the right to grant an extension of the recertification time limit and requirements under the following conditions:

1. Illness or injury;

2. Military service;

3. Administrative leave, full-time educational leave or suspension pending investigation or adjudication of a crime; or

4. Any other reasonable situation documented by the employing college, university or PSS business.

E. Request for extensions shall:

1. Be submitted in writing and signed by the designated campus security contact person for the employing college, university or PSS business prior to the expiration date of the time limit for completion of the requirement;

2. Indicate the projected date for the completion of the requirement.

6VAC20-270-100. Decertification and appeal procedure.

A. The department may decertify a campus security officer who has:

1. Been convicted of or pled guilty or no contest to a felony or any offense that would be a felony if committed in Virginia;

2. Failed to comply with or maintain compliance with compulsory minimum training requirements;

3. Refused to submit to a drug screening or has produced a positive result on a drug screening reported to the employer where the positive result cannot be explained to the employer's satisfaction;

4. Lied on or failed to provide required information on an employment application for the current position;

5. Been terminated for just cause by the employing college, university or PSS business.

B. Such campus security officer shall not have the right to serve as a campus security officer within this Commonwealth until the department has reinstated the certification.

C. The findings and the decision of the department may be appealed to the board provided that written notification is given to the attention of the Director, Department of Criminal Justice Services, within 30 days following the date notification of the decision was served, or the date it was mailed to the respondent, whichever occurred first. In the event the hearing decision is served by mail, three days shall be added to that period. (Rule 2A:2 of Rules of the Virginia Supreme Court).

6VAC20-270-110. Instructor approval.

A. The department may approve instructors to deliver campus security officer training and may revoke such approval for cause.

B. Each person applying for instructor approval shall:

1. Submit an instructor application, signed by the designated contact person of the employing college, university, or PSS business, on the form prescribed by the department;

2. Have a high school diploma or equivalent (GED) or have passed the National External Diploma Program;

3. Have a minimum of:

a. Two years management or supervisory experience as a campus security officer or supervisory experience with any federal, state, county or municipal law-enforcement agency in a related field; or

b. Three years general experience as a campus security officer, or with a federal, state or local law-enforcement agency in a related field; and

4. One year experience and demonstrated success as an instructor or teacher in an accredited educational institution or law-enforcement or security agency.

C. Each person applying for instructor approval shall file with the department a properly completed application provided by the department. The department maintains the right to require additional documentation of instructor qualifications.

D. The department will evaluate qualifications based upon the justification provided.

E. Upon completion of the instructor application requirements, the department may approve the instructor for an indefinite period.

F. Each instructor shall conduct himself in a professional manner and the department may revoke instructor approval for cause.

G. The department has the authority to accept a waiver application with supporting documentation demonstrating related training and/or experience that meets or exceeds standards established by the department within the three years immediately preceding the date of the instructor application.

6VAC20-270-120. Instructor standards of conduct.

An instructor shall:

A. Conform to all requirements pursuant to the Code of Virginia and this chapter;

B. Maintain a current mailing address, phone number, and email address with the department. Written notification of any address, phone number or email change shall be received by the department no later than 30 days after the effective date of the change;

C. Inform the department in writing within 72 hours or the beginning of the next work day, whichever comes first, after an arrest for any felony or misdemeanor;

D. Inform the department in writing within 72 hours or the beginning of the next work day, whichever comes first, after having been convicted of any felony or misdemeanor;

E. Inform the department in writing within 10 days after having been found guilty by any court or administrative body of competent jurisdiction to have violated the campus security officer statutes or regulations of that jurisdiction;

F. Conduct training sessions pursuant to requirements established in this chapter;

G. Notify the department within 10 calendar days following termination of employment; and

H. Be professional in conduct.

6VAC20-270-130. Instructor administrative requirements.

A. Campus security officer instructors shall ensure that training sessions are conducted in accordance with requirements established in this chapter. Adherence to the administrative requirements, attendance, and standards of conduct are the responsibility of the instructor of the training session.

B. Administrative requirements.

1. An approved instructor must submit, in a manner approved by the department, a notification to conduct a training session. All notifications shall be received by the department, no less than 30 calendar days before the beginning of each training session to include the date, time, instructors, and location of the training session. The department may waive the 30 day notification at its discretion.

2. The instructor must submit notification of any changes to the date, time, location, or cancellation of a future training session to the department. This notice must be received by the department at least 24 hours in advance of the scheduled starting time of the session. In the event that a session must be cancelled on the scheduled date, the department must be notified as soon as practical.

3. A test approved by the department shall be administered at the conclusion of each module of the entry-level training session. The student must attain a grade of 70% on each module. All test documents must be returned to the department with an accompanying training roster in a manner approved by the department.

4. The instructor shall submit tests and training roster to the department. These shall be received by the department within seven calendar days, or postmarked if mailed, no later than five business days following the training completion date.

5. Instructors will conduct training sessions utilizing the curriculum developed or approved by the department including, at a minimum, any compulsory minimum training standards established pursuant to this chapter. Instructors must maintain accurate and current information on relevant laws and make necessary changes to the curriculum. It is the instructor's responsibility to assure they have the most recent curriculum supplied or approved by the department.

6. The instructor shall permit the department to inspect and observe any training session.

7. Mandated training conducted not in accordance with the Code of Virginia and this chapter is invalid.

C. Attendance.

1. Campus security officers enrolled in an approved training session are required to be present for the modules required for each training session.

2. Tardiness and absenteeism will not be permitted. Individuals violating these provisions will be required to make up any training missed. Such training must be completed by the certification process deadline, and cannot be used to extend that deadline. Individuals not completing the required training within this period may not be certified or recertified and may be required to complete the entire training session.

3. Each individual attending an approved session shall comply with the regulations promulgated by the board and any other rules applicable to the session. If the instructor considers a violation of the rules detrimental to the training of other students or to involve cheating on tests, the instructor may expel the individual from the session. The instructor shall immediately report such action to the designated campus security contact person for the employing college, university, or PSS business, and the department.

FORMS (6VAC20-270)

Campus Security Officer Certification Application (1/11).

Campus Security Officer Training Class Request (1/11).

Campus Security Officer Recertification Application (1/11).

Campus Security Officer Permission for Extension (1/11).

Campus Security Officer Instructor Application (1/11).

Campus Security Officer Instructor Approval Waiver Application (1/11).

Title of Regulation: 6VAC35-30. Regulations for State Reimbursement of Local Juvenile Residential Facility Costs (amending 6VAC35-30-10, 6VAC35-30-20, 6VAC35-30-40, 6VAC35-30-60 through 6VAC35-30-190; adding 6VAC35-30-35, 6VAC35-30-45, 6VAC35-30-65; repealing 6VAC35-30-30, 6VAC35-30-50).

Statutory Authority: §§ 16.1-309.5, 16.1-309.9, 16.1-322.7, and 66-10 of the Code of Virginia.

Effective Date: July 1, 2011.

Agency Contact: Janet VanCuyk, Regulatory Coordinator, Department of Juvenile Justice, 700 E. Franklin Street, 4th floor, Richmond, VA 23219, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

Summary:

The amendments (i) incorporate the requirement for the state to reimburse at a 50% rate as provided by statute; (ii) change the square footage requirements depending on the size of the facility; (iii) amend the board-approved funding formula to come into accord with the funding formula utilized for state facilities; (iv) add a pre-screening requirement to clarify what construction is subject to the regulation; (v) add the board's ability to review for efficiency and an efficiency ratio for construction; and (vi) add factors for the board to consider adjusting reimbursement, as is currently the practice at the Department of Corrections. The changes from the proposed to the final stage are generally technical in nature.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

CHAPTER 30
[ REGULATIONS REGULATION ] FOR GOVERNING STATE REIMBURSEMENT OF LOCAL JUVENILE RESIDENTIAL FACILITY COSTS

Part I
General Information

6VAC35-30-10. Introduction.

The state Board of Youth and Family Services is charged with the responsibility for approving all requests from localities for financial assistance relative to the development and operation of new programs and services; for purchase of property; and for construction, enlargement, or renovation of detention homes, group homes or other residential care facilities for children; whether publicly or privately constructed.

The Department of Youth and Family Services exercises oversight responsibility in the establishment and maintenance of programs, services and residential care facilities for children.

The Office of Capital Outlay Management within the Department of Youth and Family Services is responsible for architectural and engineering review of residential care facilities which are constructed, enlarged or renovated, and reimbursed with state funds.

Section 16.1-309.5 of the Code of Virginia requires the Board of Juvenile Justice and the Governor to evaluate all plans for, specifications of, and requests for reimbursement from a locality or localities for the construction, enlargement, purchase, or renovation of projects governed by this chapter. No reimbursements for costs and construction for such projects shall be made unless the plans, specifications, and construction are approved by the board and the Governor in accordance with the provisions contained herein.

Section 16.1-309.9 of the Code of Virginia further mandates the board to approve minimum standards for the construction and equipment of detention homes and other facilities governed by this chapter. Any such project shall be subject to this regulation and all applicable statutes, regulations, and guidance documents, including, but not limited to, the following:

1. The Virginia Public Procurement Act, Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2 of the Code of Virginia;

2. The Construction and Professional Services Manual (CPSM), October 2004, issued by the Department of General Services, Division of Engineering and Building;

3. The Step-by-Step Procedures for Approval and Reimbursement for Local Facility Construction, Enlargement, and Renovation, March 2001, issued by the Department of Juvenile Justice; and

4. The Agency Procurement and Surplus Property Manual (1VAC30-130), issued by the Department of General Services, Division of Purchases and Supply.

Approval of projects for which state funding is requested is vested by the Governor in the Office of the Secretary of Public Safety. Such projects are best accomplished as a cooperative venture between a locality or localities and the Department of Youth and Family Services Juvenile Justice. Using Board of Youth and Family Services (BYFS) approved and American Correctional Association (ACA) standards regulations promulgated by the board and by working together as partners from project planning to through project construction and program implementation, the locality or localities and the department ensure that an the optimum number of children are provided high quality services at a minimum cost to the locality or localities and to the Commonwealth.

As a basis for this regulation:

1. The Virginia Public Procurement Act applies generally to every public body in the Commonwealth which § 11-37 of the Code of Virginia defines to include any legislative, executive or judicial body, agency, office, department, authority, post, commission, committee, institution, board or political subdivision created by law to exercise some sovereign power or to perform some governmental duty. Therefore, the Commonwealth of Virginia Agency Procurement and Surplus Property Manual, current edition, will apply when construction of juvenile facilities is reimbursed by state funds.

2. The Agency Procurement and Surplus Property manual incorporates the Commonwealth of Virginia Capital Outlay manual for policy and guidelines for Capital Outlay Projects. Generally, construction or renovation of juvenile facilities would constitute Capital Outlay. The Department of Youth and Family Services shall therefore apply the Commonwealth of Virginia Capital Outlay manual, current edition, whenever reimbursement with state funds is requested. Special emphasis on Chapters V, VIII, and X shall be considered whenever reimbursement is requested.

3. The Department of Youth and Family Services does not intend to replace or relieve responsibilities of the architectural and engineering firms and applicable regulatory authorities (i.e., Building Official, State Fire Marshal, etc.).

For the purposes of this chapter and reimbursement recommendations to the Secretary and the Governor, the Department of Youth and Family Services (DYFS) or its designee shall be the reviewing authority.

Part II
Definitions and Legal Basis

6VAC35-30-20. Definitions.

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

"ACA" means American Correctional Association.

"Area allowance per bed" means the gross square footage of the facility divided by the facility's design capacity as provided herein.

"Architectural/Engineering (A/E) services" means an individual or firm that is licensed by the Virginia Department of Commerce to provide professional services appropriate for the specific project, and is hired by the owner to provide those specific services for the project.

"Board" means the Virginia Board of Youth and Family Services Juvenile Justice.

"Board-approved funding formula" means the method by which construction costs are calculated as provided for in [ 6VAC35-30-60 6VAC35-30-65].

"Board approved standards regulation" means standards a regulation or section or subsections thereof promulgated and approved by the Board of Youth and Family Services board. These standards include:

1. Chapter 50 of Title 6 (6VAC35-50-10 et seq.), Standards for Interdepartmental Regulation of Residential Facilities for Children;

2. Chapter 100 of Title 6 (6VAC35-100-10 et seq.), Standards for Secure Detention; and

3. Chapter 40 of Title 6 (6VAC35-40-10 et seq.), Standards for Predispositional and Post-Dispositional Group Homes.

"Department" or DYFS "DJJ" means the Department of Youth and Family Services Juvenile Justice.

"Efficiency ratio" means the proportion of a building's net usable area to its gross floor area.

"Enlargement" or "Expansion" means to expand an existing local facility by constructing additional areas.

"Furnishings and equipment" means built-in equipment or fixtures normally included in a structure at the time of construction.

"Local facility" [ or "facility" ] means a juvenile residential facility which that is or may be regulated by the board and is owned, maintained, or operated by any political subdivision or combination of political subdivisions of the Commonwealth, or a privately owned or operated juvenile residential facility which that has contracted with any political subdivision or combination of political subdivisions of the Commonwealth and is or may be regulated by the board.

"Locality's representative" means an individual who is licensed by the Virginia Department of Commerce as an architect or engineer.

"Needs assessment" means an evaluation of trends and factors at the local or regional level which that may affect current and future local facility needs, and the assessment of local facilities and nonresidential programs available to meet such needs. The needs assessment for each proposed project shall identify the target population, the specific need of the target population the project is seeking to address, why the specific need cannot be met with existing resources, all alternatives considered to meet identified need, and the reason for rejecting the alternatives.

"New construction" means to erect a new local facility or replace an outdated existing local facility.

"Operating capacity" means operating capacity as established by the Department of Youth and Family Services, based on "per bed area allowances." 6VAC35-30-60 C 2.

"Planning study" means an overall description of a proposed project consisting of new construction, renovation of existing facilities, or both. The planning study shall include a program description and a program design as detailed in approved department procedures, architectural and engineering drawings at the Schematic Design [ (15%) ] Document level, the relationship of the project to existing facilities or structures, the project's schedule, a detail of the project's total projected design, construction, operation, maintenance costs, and a cost/benefit analysis.

"Procedures" means the Department of Youth and Family Services Procedures for Receiving State Reimbursement for Local Facility Construction, Enlargement, Renovation, and Operating Funds, and for the Development and Operation of New Programs.

"Project" means any proposed or actual new construction, renovation, enlargement, or expansion of a juvenile residential facility that is or will be subject to approval by the department or regulation by the board.

"Renovation" means altering or otherwise modifying an existing local facility or piece of stationary equipment for the purpose of modernizing or changing its use or capability. Renovation does not include routine maintenance. Renovation renders the facility, item or area superior to the original.

"Replacement" means constructing a local facility in place of a like local facility or purchasing equipment to replace stationary equipment which cannot be economically renovated or repaired.

"Reviewing authority" means the department, division or agency to which the Governor has delegated authority to act in his behalf in reviewing local facility construction projects for reimbursement approval.

"Routine maintenance" means the normal and usual type of repair or replacement necessary as the result of periodic maintenance inspections or normal wear and tear of a local facility or equipment.

"Sponsor" means a city, county, commission, or any combination thereof, or any private entity under contract or arrangement with any city, county, commission, or any combination thereof, that is actually or proposing to build, renovate, expand, or operate a local facility.

"Substantive change" means user generated design changes affecting any deviation from an approved plan or design that will affect the operational and functional performance of the facility, that potentially impacts the facility's compliance with any board regulation, that would result in a change in capacity, or that would result in the sponsor seeking additional reimbursement, as detailed in approved department procedures.

6VAC35-30-30. Legal basis. (Repealed.)

A. This chapter has been promulgated by the board to carry out the provisions of §§ 16.1-313 and 16.1-322.5 through 16.1-322.7 of the Code of Virginia. This chapter:

1. Serves as a guideline in evaluating requests for reimbursement of local facility construction costs;

2. Includes criteria to assess need and establish priorities;

3. Ensures the fair and equitable distribution of state funds provided for reimbursing local facility construction costs; and

4. Provides criteria for private construction of detention or other residential facilities.

B. The board is authorized to promulgate regulations pursuant to § 66-10 of the Code of Virginia.

Part III
Procedures

6VAC35-30-35. Prescreening.

A. Any sponsor planning any construction, renovation, enlargement, or expansion of a local facility shall submit an initial writing to the department that shall include a graphic showing any proposed structural changes and a brief description of all operating capacity or programmatic changes to be accommodated by the structure. The department shall review the initial writing and inform the sponsor in writing whether the project is subject to this regulation as soon as practicable but no later than 30 days from the receipt of the initial writing from the sponsor. If the department fails to respond in the required time frame, the sponsor may proceed with the reimbursement request in accordance with this chapter.

B. Any request shall be determined to be in one of the following categories:

1. For any new construction, change, or modification of an existing local facility or piece of stationary equipment, including security related upgrades, that will affect the facility's compliance with a board regulation, result in a change in certification or licensure status, or result in increased square footage, bed space, or capacity shall be subject to this regulation.

2. For any facility enhancements not provided for in subdivision 1 of this subsection for which the sponsor seeks reimbursement, the sponsor shall submit a project overview and cost estimates to the board for approval and shall be subject to the requirements of 6VAC35-30-180. The department and board may require additional documentation.

3. Minor changes, such as routine maintenance, shall not be subject to this regulation and shall be managed informally in accordance with department procedures.

Part III
Reimbursement Request Procedures

6VAC35-30-40. Reimbursement request.

A. Requests for reimbursement shall be submitted as follows: 1. Requests for reimbursement shall be approved by the board by June 1 of each year for inclusion in the department's budget request to the Governor and consideration during the next General Assembly session. Incomplete submissions, or submissions not received by the department prior to or on April 1 will not be submitted to the board for inclusion in the department's budget request. For all projects subject to this regulation, the department shall advise the sponsor of the deadline for submissions necessary to obtain approval, for inclusion in the department's budget request to the Governor, and for consideration during the next General Assembly session.

2. B. Needs assessment. The locality sponsor shall direct a letter to the department requesting the board to recommend to the Governor reimbursement for construction, enlargement or renovation. The letter shall be accompanied by the information required by subsection B., prior to the applicable deadline, submit a needs assessment that shall demonstrate the need for the particular service, program, or facility. The board shall consider the needs assessment at its next regularly scheduled meeting and shall approve, reject, or return the needs assessment.

1. If the needs assessment is approved by the board, the department shall advise the sponsor of the board's decision and of the deadline for submitting the planning study for the project.

2. If the needs assessment is returned to the sponsor, the board shall provide the sponsor with additional factors to be considered prior to resubmission.

3. The department shall advise the sponsor of the board's decision, in writing, within seven business days of the board's decision.

3. C. Planning study. The department shall submit the completed request for reimbursement to the board for review and approval by the second board meeting or within 60 days following submission by the locality sponsor shall, upon approval of the needs assessment by the board and prior to the applicable deadline, submit a complete planning study that shall explain how the proposed project is the most appropriate and cost-effective response to the specific need identified in the needs assessment.

1. The planning study shall be accompanied by an estimate of the total amount of reimbursement to be requested and a resolution from the governing body of the sponsor or sponsors requesting reimbursement.

2. The board shall consider the planning study at its next regularly scheduled meeting and shall utilize the criteria outlined in 6VAC35-30-60 when reviewing a sponsor's planning study and accompanying materials. Upon approval of a planning study, the board shall recommend the amount of state reimbursement for the project and shall forward the sponsor's submissions and the board's recommendation to the Governor or the Governor's designee for approval.

B. Requests for reimbursement of local facility construction, enlargement or renovation costs shall be accompanied by:

1. A needs assessment as specified in the procedures;

2. A resolution from the locality or localities requesting reimbursement;

3. An estimate of the reimbursement amount being requested;

4. A planning study as specified in the procedures; and

5. 3. Requests for regional facilities shall also include a copy of the agreement between the participating localities including the allocation of financial and operational responsibilities.

6VAC35-30-45. Effect of legislative moratorium.

A. In such times when the Virginia General Assembly has imposed a moratorium on construction and reimbursement of construction costs, the sponsor shall follow the requirements of this chapter.

B. To obtain any reimbursement thereafter, the sponsor shall:

1. Pursue a legislative exception to the moratorium on construction and reimbursement of construction costs; or

2. Request reimbursement at such time as the Virginia General Assembly authorizes funding for such projects.

6VAC35-30-50. Preliminary review. (Repealed.)

Localities wishing a review of their needs assessment prior to formally submitting a reimbursement request may submit only the needs assessment as specified in 6VAC35-30-40 B. Upon review of the needs assessment, the board will notify the locality or localities as to whether it appears to the board that they are ready to proceed with the formal reimbursement request.

6VAC35-30-60. Criteria for board funding recommendation.

A. Demonstrated need. The board will shall evaluate the need for the project as demonstrated by the information provided in the Needs Assessment and Planning Study.

B. Operational cost efficiency. The board shall take into consideration the operational cost efficiency of the interior design of the facility with special concern for the number of staff required, functional layout, material selection, and energy efficiency, with special emphasis on meeting the needs of youth and the mission of the facility. Design of the program facility shall meet the standards of the board and ACA.

C. Construction cost. All sponsors shall calculate construction costs in accordance with the funding formula provided in 6VAC35-30-65. Construction economy shall be reviewed in relation to the adjusted median cost of local facilities. The adjusted median cost of local facilities will be calculated by the department as a per bed cost using the following procedure:

1. A cost per square foot base figure will be the national median square-foot cost for jails (location factor applied), published in the latest edition of "Means Facilities Cost Data" published by R. S. Means Company, Inc. The "Means Facilities Cost Data" takes into consideration the "location factor" which is the materials and labor cost differential specific to a geographical location;

2. The adjusted square-foot costs will be converted to per-bed costs using per-bed area allowances based on the average gross square footage of actual and proposed local facilities in Virginia; the area allowances must be in accordance with all applicable codes and standards according to the following formula:

National cost per square foot (Means)

X Location Factor (Means)

X Area allowance per bed (maximum 900 sq. ft. per bed)

= Adjusted median construction cost of local facility;

3. The total project cost will include:

a. Construction (subdivision C 2 above);

b. Site and utilities (Means);

c. Architectural and engineering (Virginia Capital Outlay Manual);

d. Furnishings and equipment (as itemized);

e. Project inspection (Virginia Capital Outlay Manual);

f. Contingency (3.0%);

g. Property purchased specifically for this facility; and

h. Other.

D. Board review of construction costs. The economy of construction cost is necessary and shall be reviewed as follows:

1. Review for efficiency.

a. Projects or portions of projects involving renovation of existing facilities shall be reviewed in relation to the efficiency of the renovated spaces, the appropriateness of the proposed changes, and the relationship of the changes to the project of a whole.

b. Projects of new construction shall be reviewed for the building's appropriate efficiency ratio. The board may request further information from the sponsor on projects with a building's efficiency ratio of less than 65%.

2. The board may adjust the amount being requested for reimbursement funding as follows:

a. A reduction in funding when functional areas of the facility, such as the kitchen, recreation area, educational facilities, visiting area, and laundry facilities are not included or are included at a size not in conformance with applicable regulations or normal practice;

b. An increase in funding when support services areas are proposed at sizes larger than necessary in anticipation of future enlargements or expansions of the facility;

c. A decrease in funding when the building's efficiency ratio is less than 65%; and

d. An increase in funding when the facility includes areas for extraordinary program activities.

3. Any adjustments made by the board in funding shall be based upon the gross square footage of the various conditions multiplied by a cost equal to the adjusted median cost or the proposed gross square foot cost of the facility, whichever is less.

D. E. Phased reimbursement of projects. When localities wish A sponsor may request, when submitting the planning study for review, to meet the requirements outlined in the needs assessment receive portions of the total project reimbursement based upon the completion of the project in phases,. In response to such requests, the board may approve reimbursement based on the total estimated cost of the project as if it were to be completed as a single endeavor; however, reimbursement will be in amounts proportional to the phases of construction and payment will be made only as each approved phase is completed and that portion of the building is ready to be placed in service.

6VAC35-30-65. Funding formula.

A. The following funding formula shall be used to calculate estimated construction costs at the Schematic Design [ (15%) ] Documents level in the planning study phase:

1. A cost per square foot base figure shall be the national median square-foot cost for jails published in the 24th annual edition of R. S. Means Facilities Construction Cost Data 2009 (Means) with consideration taken of the "location factor," which is the materials and labor cost differential specific to the project's geographical location.

2. The cost per square foot, adjusted using the location factor, must be in accordance with all applicable codes and standards and in accordance with the following formula:

National cost per square foot (from Means)

X Location Factor (from Means)

X Area allowance per bed (as provided for in subsection B of this section)

= Adjusted median construction cost of local facility.

3. The total project cost shall include:

a. Construction cost;

b. Site and utilities (from Means);

c. Architectural and Engineering services (services as defined in the Construction and Professional Services Manual (CPSM));

d. Furnishing and equipment (as itemized by the sponsor);

e. Project inspection (services as defined in the CPSM);

f. Contingency (10.0%);

g. Inflation factor (yearly market inflation rate applied from January 1 of the year of the submitted design through the midpoint of construction, compounded [ ) ] ;

h. Property purchased specifically for this facility; and

i. Other.

B. The following area allowances per bed shall be used to calculate the adjusted median construction cost of a local facility:

1. A maximum of 700 square feet per bed for facilities up to 35 residents;

2. A maximum of 650 square feet per bed for facilities of 36 to 79 residents; and

3. A maximum of 550 square feet per bed for facilities with 80 or more residents.

6VAC35-30-70. Funding priorities.

A. The following criteria, as determined by the needs assessment shall serve as a guide for determining the level of priority given to requests for reimbursement:

1. New construction or renovation is needed because the existing facility is closed by the court, Board of Youth and Family Services or local governing authority due to its failure to meet state or local operating standards;

2. An unsafe physical plant which fails to meet life, health, safety standards, or a court-ordered renovation, expansion, or new construction;

3. Replacement or renovation of bedspace lost due to fire, earthquake or other disaster;

4. An existing local facility is experiencing overcrowding which is expected to continue based on population forecasts;

5. A locality with no existing local facility;

6. An addition to or renovation of support facilities;

7. Phased projects; and

8. Cost overruns.

B. Regional projects. The board will shall prioritize reimbursement requests in a manner to ensure an equitable distribution of state funds across the Commonwealth; and, absent a health, safety, or welfare risk requiring priority, the board shall ordinarily give preference to requests for reimbursement for regionalized local facilities. Regionalized local facilities shall normally serve three or more localities as determined by the needs assessment.

6VAC35-30-80. Board recommendations to the Governor.

A. The department will direct a letter to the locality notifying the governing body shall notify the sponsor in writing within seven business days of the board's decision to recommend or not to recommend a project for reimbursement, and. If the recommendation is not to recommend reimbursement, the department shall briefly explain the rationale for the decision.

B. The board shall submit to the Governor, or his designee (i) its recommendations with respect to reimbursement requests and the rationale therefor; and (ii) such information as the Governor may require with respect to a request for approval of reimbursements.

C. Final appropriations are subject to the Governor's approval and legislative enactment.

Sections 16.1-313 and 16.1-322.7 of the Code of Virginia establish the rate of reimbursement to localities for construction, enlargement or renovation.

Part IV
Project Development

6VAC35-30-90. Preliminary design.

A. The locality sponsor shall submit preliminary design [ (35%) ] documents to the department as specified in the defined in the CPSM and required by approved department procedures and the Virginia Capital Outlay manual. The locality may also be required to submit preliminary design documents to other regulatory agencies.

B. Preliminary design [ (35%) ] documents shall be approved reviewed by the department for compliance with applicable statutes, regulations, and any guidance documents that are incorporated herein.

1. If the department requires changes to the preliminary design [ (35%) ] documents, all such required changes will shall be communicated in writing to the locality sponsor.

2. The locality's representative, or its A/E, sponsor shall respond in writing to the department to all comments received from the department in the preliminary design review. Necessary revisions to the project documents may be incorporated in the submission of the construction documents (referred to as the "working drawings" in the CPSM); however, all issues in question between the locality's representative, or A/E, and the department detailed in these writings shall be resolved before the project is advanced to the construction document phase is begun (referred to as the "working drawings phase" in the CPSM).

C. When all review comments have been addressed and resolved, the department shall notify the sponsor that the project has progressed to the construction documents phase.

6VAC35-30-100. Construction documents.

A. Localities The sponsor shall submit construction documents to the department as specified in the defined in the CPSM and required by approved department procedures and the Virginia Capital Outlay manual. The locality may also be required to submit construction documents to other regulatory agencies. The fire official of the authority having jurisdiction over the proposed facility shall conduct a plans review and approve the construction. The construction documents shall include 100% complete working drawings, 100% complete specifications, and all required review approvals from local building, health, and fire officials.

B. The department will review construction documents shall be reviewed by the department for compliance with board standards, Code requirements, applicable statutes, regulations, and any guidance documents incorporated herein, and for incorporation of all changes required by the department at the preliminary document review stage. This review in no way releases the A/E sponsor from his other applicable responsibilities and requirements.

1. If the department requires changes to the construction documents, all such required changes will shall be communicated in writing to the locality sponsor.

2. The locality's representative, or its A/E, sponsor shall respond in writing to the department to all comments received from the department in the construction document review. All issues in question between the architect, the locality and the department detailed in these writings shall be resolved before the project is bid advanced to the bidding phase.

C. Upon satisfactory resolution of When all review comments have been addressed and resolved, the department shall approve the construction documents and advise the locality sponsor in writing within 10 working days, as required in approved department procedures, that the project may progress to the bidding phase (referred to as the "bid documents phase" in the CPSM).

6VAC35-30-110. Changes during project development Change order process.

If, during the project development stage, any substantive change in the scope of the project, any increase in the estimated cost of construction, or any change in the operational staff requirements occurs, the review process [ will shall ] be suspended until the project is resubmitted to the board for further review and possible change in the status of reimbursement recommendation.

Part V
Project Construction

6VAC35-30-120. Bids Bidding.

After bids for construction have been received and opened, and the locality sponsor has determined to proceed with the project, the locality sponsor shall require its A/E to submit to the department a bid tabulation, analysis, and recommendation as to the award of the contract. Any comments by the department shall be forwarded to the locality sponsor within 10 working days five business days of receipt; and the sponsor shall respond to the comments in writing within 10 business days of receipt of the department's comments. The department's failure to respond in the required time frame shall serve as acceptance of the sponsor's recommendation as to the award of the contract.

6VAC35-30-130. Construction.

A. During the construction of all projects, the locality sponsor shall require its architect to submit monthly inspection or progress reports to the department. The sponsor shall submit the reports to the department no later than the 15th day of the month following the inspection or when the progress report became due. The department must respond shall notify the sponsor in writing within 10 working business days after receipt if there are of any issues or problems with the project or the reports. Failure to do so serves The department's failure to respond in the required time frame shall serve as acceptance of the inspection and progress report. Any failure to timely submit the monthly inspection or progress reports may constitute grounds to deny the requested reimbursement, in whole or in part.

B. Any substantive changes, single change orders of $10,000 or more, and accumulative change orders exceeding the project contingency change during the construction phase shall be submitted in writing to the department for review and approval before any such change is executed. Only those changes that are approved through this the approved department procedure shall be eligible for reimbursement. Any failure to seek and obtain approval of a substantive change may constitute grounds to deny the requested reimbursement, in whole or in part.

C. A representative of the department may visit the project site during the construction period to observe the work in progress. Any observed deviations from approved documents having the effect of voiding or reducing compliance with board standards or Code requirements shall be reported in writing to the locality within 10 working days and shall be corrected.

6VAC35-30-140. Final inspection.

A. Upon construction completion, the locality's representative, or the A/E, sponsor shall establish a schedule for final inspection of the project as follows. This schedule shall include: 1. The locality shall notify (i) notification to the department and all regulatory agencies which that reviewed preliminary design or construction documents of the schedule for final inspection. The fire official of the authority having jurisdiction shall conduct a plan review and approve the construction; 2. The locality shall (ii) a request to the personnel or agencies involved in the final inspection to submit comments or recommendations in writing to the locality sponsor and forward copies to the department.; 3. The locality shall require its architect to take necessary corrective action on (iii) documentation of the correction of all deficiencies noted in the comments; and submit (iv) the submission of a report of completed actions to the appropriate reviewing agencies and forward a copy of the report to the department.

B. Upon completion of the final inspection and corrective actions as required, the locality sponsor shall provide to the department copies of all required regulatory agency letters verifying approval of the completed project. The A/E and shall certify to the department the completion of the project.

6VAC35-30-150. Record documents.

The locality sponsor shall require its architect to modify original drawings and specifications to reflect the condition of the project as actually constructed, and such documents shall be marked "Record." The record documents shall be prepared as defined in the CPSM and in accordance with approved department procedures.

Part VI
Private Construction of Juvenile Facilities

6VAC35-30-160. Legal basis Private construction of juvenile facilities.

Section 16.1-322.5 of the Code of Virginia provides for allows the Board of Youth and Family Services board to authorize a county or city or any combination of counties, cities, or towns established pursuant to § 16.1-315 of the Code of Virginia to contract with a private entity for the financing, site selection, acquisition, or design and construction of a local or regional detention home or other secure facility. Localities authorized to contract for private construction of a juvenile detention facility shall receive state reimbursement authorized by § 16.1-313, 16.1-309.5 of the Code of Virginia, in accordance with Parts I through VI of this chapter.

6VAC35-30-170. Contract Requirements for contract authorization.

Prior to receiving the Board of Youth and Family Services board's authorization to enter into a contract for private construction, localities sponsors shall certify and submit documentation demonstrating that all requirements mandated by § 16.1-322.5 of the Code of Virginia have been met by both the locality sponsor and the contractor.

Part VII
Final Reimbursement

6VAC35-30-180. Request for final reimbursement for all projects.

A. Upon completion of the project, the locality sponsor shall submit the documentation specified by the approved department procedures to the department.

B. If the final amount of reimbursement requested is no more not greater than the reimbursement amount initially recommended, including the contingency, the department will shall authorize reimbursement within 90 days of receiving a complete reimbursement request. The reimbursement request shall be in the form specified by the department.

C. If the final amount of reimbursement requested is more greater than the reimbursement amount initially recommended, the sponsor shall justify the cost increase shall be justified by the locality and resubmitted submit the adjusted reimbursement request to the board and the Governor, or his designee, for approval.

6VAC35-30-190. Compliance.

Failure to comply with these regulations will delay the review process and recommendation for disbursement of funds, and may result in the denial of reimbursement, and may result in the failure to obtain board certification or department approval to house [ juveniles residents ] in the facility as provided for in [ 6VAC35-20-69 the Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (6VAC35-20) ].

DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-30)

Procedures for Receiving State Reimbursement for Local Facility Construction, Enlargement, Renovation, and Operating Funds, and for the Development and Operation of New Programs.

The Step-by-Step Procedures for Approval and Reimbursement for Local Facility Construction, Enlargement, and Renovation, revised March 2001, Department of Juvenile Justice.

Construction and Professional Services Manual, Revision 1, October 2004, Department of General Services, Division of Engineering and Buildings [ (http://www.dgs.virginia.gov/LinkClick.aspx?fileticket=kn4ZKoyodZc%3d&tabid=404&mid=1128) ].

R.S. Means Facilities Construction Cost Data 2009, 24th Annual Edition, R.S. Means-Reed Construction Data (http://rsmeans.reedconstructiondata.com).

Title of Regulation: 8VAC20-120. Career and Technical Education Regulations (amending 8VAC20-120-10 through 8VAC20-120-50, 8VAC20-120-70, 8VAC20-120-80, 8VAC20-120-100 through 8VAC20-120-170).

Statutory Authority: §§ 22.1-16 and 22.1-227 of the Code of Virginia.

Public Hearing Information:

March 24, 2011 - 11 a.m. - James Monroe Building, 101 N. 14th Street, 22nd Floor Conference Room, Richmond, VA

Public Comment Deadline: April 4, 2011.

Agency Contact: Anne Rowe, CTE Coordinator, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 225-2838, FAX (804) 371-2456, or email anne.rowe@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to promulgate such regulations as may be necessary to carry out its powers and duties. Section 22.1-227 of the Code of Virginia authorizes the board to carry out the provisions of the federal Carl D. Perkins Career and Technical Education Act of 2006 (Perkins Act of 2006).

Purpose: Changes in both federal and state laws pertaining to career and technical education necessitate revisions to the Virginia Regulations Governing Career and Technical Education, 8VAC20-120. The regulations have been examined in their entirety, including the requirements for general provisions, administration of career and technical education programs, and operation of career and technical education programs. The goals of this review are to (i) update the regulations to comply with new state and federal laws, such as an identification and clarification of the U.S. Department of Education's approved Virginia requirements for meeting the performance standards of the Perkins Act of 2006; and (ii) update definitions for consistency with other state and federal regulations dealing with similar issues such as a clarification of definition of terms impacted by the Perkins Act of 2006, for example "career cluster," "career pathways," and "performance measures"; and (iii) eliminate any duplicative regulations.

Substance: The Perkins Act of 2006 has expanded to include student attainment of career and technical skill proficiencies, including student achievement on technical assessments, that are aligned with industry-recognized standards. Virginia has identified a combination of student competency achievement (existing requirement) with attainment of an industry credential as approved by the Virginia Board of Education. State and federal funds are available to assist school divisions in meeting this requirement. Another substantive addition is the infusion of Career Clusters and Pathways into CTE instructional programs and the use of program/plans of study and/or the academic and career plan to map out students' courses of study based on career assessment and career investigation. One other change to the regulations has a positive fiscal impact on school divisions. That change is requiring maintenance of effort rather than a full equal match of funds when purchasing equipment. All other changes are an inclusion of regulations from other regulatory documents that had not been included in the past, clarifications of existing regulations, and updating wording to reflect current state and federal terminology.

The proposed revisions will have no negative affect on the health, safety, or welfare of citizens or regulated entities. The provisions provide additional protections to communities and citizens by ensuring high quality career and technical programs in the public schools.

Issues: The primary advantage of the proposed revisions to the localities would be that the regulations would be in accordance with new state and federal laws. Localities would know what they must do to be in compliance with the state and federal laws pertaining to career and technical education.

The proposed revisions would not present any disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes several updates for these regulations that include additional and amended definitions and clarifications of current policy. The clarifications of current policy include but are not limited to: 1) specifying the federal Perkins Act requirements that no less than 60 percent of federal funds may be expended on required expenditures and up to 40 percent could be spent on permissive uses, 2) clarifying that local school divisions can ask for approval on items not listed on the recommended equipment lists maintained by the Department of Education, 3) modifying language to allow the possibility for a change in the frequency of plan submission, 4) adding language referring to the 2006 Perkins grant and 2009 Standards of Accreditation career plans, 5) amending the section concerning maximum class size for greater clarity, 6) clarifying that categorical funding is available to students who take industry credentials approved by the Board, 7) specifying reporting requirements, and 8) adding a reference to alignment with Standards of Accreditation requirements. Further the Board proposes to allow localities to fund equipment on a maintenance of effort basis as opposed to the current requirement of a local match equal to the amount of state funding for career and technical education equipment.

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

Estimated Economic Impact. Under the current regulations, localities are required to provide a full equal match of funds for career and technical education equipment when receiving state dollars to pay for the equipment. The Board proposes to require a maintenance of effort instead of a full dollar for dollar match of local funds for equipment. Maintenance of effort is defined as the assurance that localities continue to provide funding for CTE programs at least at the level of support of the previous year. This proposed change will provide greater flexibility for local school divisions and may in some cases allow for the purchase of equipment for career and technical education classes when otherwise it would not be affordable. For example, when state dollars are available to pay for all or most of the cost of a piece of equipment, but the locality has less than half the funds needed to pay for the equipment, the school division could potentially purchase the equipment under the proposed language, but could not under the current language. All other proposed changes are consistent with current policy and will have no impact beyond helping inform affected entities and other members of the public.

Businesses and Entities Affected. The regulations affect the 131 public school divisions in the Commonwealth, the 11 jointly operated vocational technical centers, the Virginia Community College System (23 institutions), and the Department of Correctional Education.

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

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act process.

Summary:

The Board of Education proposes several updates to include regulations from other regulatory documents that previously had not been included, add and amend definitions to reflect current state and federal terminology, and clarify current policy. The clarifications of current policy include but are not limited to: (i) specifying the federal Carl D. Perkins Career and Technical Education Act of 2006 (Perkins Act) requirements that no less than 60% of federal funds may be expended on required expenditures and up to 40% may be spent on permissive uses, (ii) clarifying that local school divisions can ask for approval on items not listed on the recommended equipment lists maintained by the Department of Education, (iii) modifying language to allow the possibility for a change in the frequency of plan submission, (iv) adding language referring to the 2006 Perkins grant and 2009 Standards of Accreditation career plans, (v) amending the section concerning maximum class size for greater clarity, (vi) clarifying that categorical funding is available to students who take industry credentials approved by the board, (vii) specifying reporting requirements, and (viii) adding a reference for alignment with Standards of Accreditation requirements. Further the board proposes to allow localities to fund equipment on a maintenance of effort basis as opposed to the current requirement of a local match equal to the amount of state funding for career and technical education equipment.

Part I
General Provisions

8VAC20-120-10. Authority to promulgate; requirements for compliance with state and federal regulations.

These regulations are promulgated by the Board of Education pursuant to § 22.1-216 § 22.1-16 of the Code of Virginia for career and technical education programs funded in whole or in part with state funds. Federal laws pertaining to such programs permit state regulations in addition to federal requirements (see Carl D. Perkins Vocational and Technical Education Act of 1998 2006 (Perkins Act of 2006), § 121 (20 USC § 2341)).

Local education agencies operating career and technical education programs shall comply with these regulations of the Board of Education and requirements of applicable federal legislation, including the Education Department General Administrative Regulations (EDGAR) (34 CFR Part 74.2) and the Carl D. Perkins Vocational and Technical Education Act of 1998 2006.

8VAC20-120-20. Definitions.

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

"Academic and career plan" means the student's program of study for high school graduation and postsecondary career pathway based on the student's academic and career interests. The academic and career plan shall be developed in accordance with guidelines established by the Board of Education. (Also see the definition of "program of study.")

"All aspects of an industry" includes, with respect to a particular industry that a student is preparing to enter: planning, management, finances, technical and production skills, underlying principles of technology, labor and environmental issues related to that industry means strong experience in, and comprehensive understanding of, the industry that the individual is preparing to enter.

"Board" means the Virginia Board of Education, that is designated as the State Board for Career and Technical Education to carry out the provisions of the federal Perkins Act of 2006 and any new amendments or acts, and as such shall promote and administer the provisions of agricultural education, business and information technology, marketing, family and consumer sciences, health and medical services, technology education, trade, and industrial education in the public middle and high schools, regional schools established pursuant to § 22.1-26 of the Code of Virginia, postsecondary institutions, and other eligible institutions for youth and adults.

"Career clusters and pathways" means a grouping of occupations and industries based on commonalities. Sixteen career clusters provide an organizing tool for schools, small learning communities, academies, and magnet schools. Within each career cluster, there are multiple career pathways that represent a common set of skills and knowledge, both academic and technical, necessary to pursue a full range of career opportunities within that pathway, ranging from entry level to management and including technical and professional career specialties. Based on the skills sets taught, all CTE courses are aligned with one or more career clusters and career pathways. The states' career clusters refers to a clearinghouse for career clusters research, products, services and technical assistance for implementation of the states' career cluster framework for lifelong learning.

"Career and technical student organizations organization" means those organizations an organization for individuals enrolled in a career and technical education programs program that engage engages in an annual program of work including career and technical activities that are as an integral part of the instructional program. These organizations may have state and national units that aggregate the work and purposes of instruction in career and technical education at the local level; if so, these organizations shall be (i) National FFA Organization; (ii) Future Business Leaders of America; (iii) Future Educators Association; (iv) Health Occupations Students of America; (iv) (v) Family, Career and Community Leaders of America; (v) (vi) DECA: An Association of Marketing Students; (vi) (vii) Technology Student Association; and (vii) (viii) Skills USA—VICA; and (ix) other student organizations that may be approved at the state and national levels.

"Categorical entitlement" means the amount of funding a local education agency is eligible to receive for a specific purpose, subject to state or federal regulations and the availability of funds.

"Competency-based education" means an instructional system that focuses on competencies needed for specific jobs, evaluation applied learning that contributes to the academic knowledge, higher-order reasoning and problem-solving skills, work attitudes, general workplace readiness skills, technical skills, and occupation-specific skills, and knowledge of all aspects of an industry, including entrepreneurship, of an individual. Evaluation of student progress is based on standards of the occupation or field, and the maintenance of student records of achievement in skill development.

"Cooperative education" means a method of instruction that combines career and technical classroom instruction with paid employment directly related to the classroom instruction. Both student instruction and employment are planned and supervised by the school and the employer so that each contributes to the student's career objectives and employability. education for individuals who, through written cooperative arrangements between a school and employers, receive instruction, including required rigorous and challenging academic courses and related career and technical education instruction, by alternation of study in school with paid employment in any occupation field, which alternation (i) shall be planned and supervised by the school and employer so that each contributes to the education, employability, and career objective of the individual; and (ii) may include an arrangement in which work periods and school attendance may be on alternate half days, full days, weeks, or other periods of time in fulfilling the cooperative program.

"Data" means information, both written and verbal, concerning career and technical education programs, activities, and students. Data include financial, administrative, demographic, student performance, and programmatic information and statistics.

"Department" means the Virginia Department of Education.

"Disadvantaged" means individuals (other than individuals with disabilities) who have economic or academic disadvantages and who require special services and assistance to enable them to succeed in career and technical education programs. Such term includes individuals who are members of economically disadvantaged families, migrants, and individuals who are dropouts from or who are identified as potential dropouts from secondary schools.

"Disability" means, with respect to an individual (i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such impairment; or (iii) being regarded as having such an impairment.

"Displaced homemaker" means an individual who (i) has worked primarily without remuneration to care for a home and family, and for that reason has diminished marketable skills; has been dependent on the income of another family member but is no longer supported by that income; or is a parent whose youngest dependent child will become ineligible to receive assistance under part A of title IV of the Social Security Act (42 USC § 601 et seq.) not later than two years after the date on which the parent applies for assistance under such title; and (ii) is unemployed or underemployed and is experiencing difficulty in obtaining or upgrading employment.

"Employability skills" means the generic skills related to seeking, obtaining, keeping and advancing in an occupation.

"Entitlement" means the amount of funding a local education agency is eligible to receive, subject to state or federal regulations and the availability of funds.

"Equipment" means any instrument, machine, apparatus, or set of articles which meets all of the following criteria: tangible nonexpendable personal property including exempt property charged directly to the award having a useful life of more than one year.

1. It retains its original shape, appearance, and character with use;

2. It does not lose its identity through fabrication or incorporation into a different or more complex unit or substance;

3. It is nonexpendable;

4. Under normal use, it can be expected to serve its principal purpose for at least one year; and

5. Excludes supplies and materials as defined by the Virginia Department of Planning and Budget's Expenditure Structure, May 2001.

"Extended contract" means a period of time provided to instructors for employment beyond the regular contractual period.

"Federal program monitoring" means monitoring and evaluation program effectiveness and ensuring compliance with all applicable state and federal laws.

"Follow-up survey" means the collection of information regarding the status of students following completion of a career and technical education program.

"Individualized education program" or "IEP" means a written statement for a child with a disability that is developed, reviewed, and revised in a team meeting in accordance with this chapter. The IEP specifies the individual educational needs of the child and what special education and related services are necessary to meet the child's educational needs (34 CFR 300.22).

"Individual with limited English proficiency" means a secondary school student, an adult, or an out-of-school youth who has limited ability in speaking, reading, writing, or understanding the English language and (i) whose native language is a language other than English and (ii) who lives in a family or community environment in which a language other than English is the dominant language.

"Industry credential" means the successful completion of an industry certification examination or an occupational competency assessment in a career and technical education field that confers certification of skills and knowledge from a recognized industry or trade or professional association or the acquiring of a professional license in a career and technical education field from the Commonwealth of Virginia. The certification examination or occupational competency assessment used to verify student achievement must be approved by the Board of Education.

"Local career and technical education plan" means a document submitted by a local education agency as prescribed by the Board of Education setting forth proposed career and technical education programs, services, activities, and specific assurances of compliance with federal regulations describing how the career and technical education programs required for funding will be maintained and how career and technical education activities will be carried out with respect to meeting state and local adjusted levels of performance established under Perkins Act of 2006, Accountability, § 113 (20 USC § 2323).

"Local education agency" means the local school division responsible for providing educational services to students; a board of education or other legally constituted local school authority having administrative control and direction of public elementary or secondary schools in a city, county, town, school division, or political subdivision in a state, or any other public educational institution or agency having administrative control and direction of a career and technical education program a public board of education or other public authority legally constituted within a state for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a state, in a state as an administrative agency for its public elementary schools or secondary schools.

"Maintenance of effort" means the assurance that localities continue to provide funding for career and technical education (CTE) programs at least at the level of support of the previous year.

"Nontraditional fields" means occupations or fields of work, including careers in computer science, technology, and other current and emerging high skill occupations, for which individuals from one gender comprise less than 25% of the individuals employed in each such occupation or field of work.

"Performance measures" means core indicators of performance for careers and technical education students at the secondary level that are valid and reliable and that include measures identified in the Accountability section of the Perkins Act of 2006 (20 USC § 2323).

"Program of study" or "plan of study" means planning a sequence of academic, career and technical, or other elective courses that (i) incorporate secondary education and postsecondary elements; (ii) include coherent and rigorous content aligned with challenging academic standards and relevant career and technical content in a coordinated, nonduplicative progression of courses that align secondary education with postsecondary education to adequately prepare students to succeed in postsecondary education; (iii) may include opportunity for secondary students to participate in dual or concurrent enrollment programs or other ways to acquire postsecondary education credits; and (iv) lead to an industry-recognized credential, license, or certificate or an associate degree at the secondary or postsecondary level or a baccalaureate or higher degree at the postsecondary level. (Also see the definition of "academic and career plan.")

"Section 504" means that section of the Rehabilitation Act of 1973 (29 USC § 791 et seq.), as amended, that is designed to eliminate discrimination on the basis of a disability in any program or activity receiving federal financial assistance.

"Special populations" means (i) individuals with disabilities; (ii) individuals from economically disadvantages families, including foster children; (iii) individuals preparing for nontraditional fields; (iv) single parents, including single pregnant women; (v) displaced homemakers; or (vi) individuals with limited English proficiency.

"Training agreement" means a formal document, signed by the instructor, employer, parent or guardian, student, and school administrator, which states the requirements affecting the cooperative education student, the terms of the student's employment, and the responsibilities of all parties involved written statement of commitment from the student, the parent, the training station, and the teacher-coordinator. It is a required formal document that spells out the responsibilities of all involved parties in the cooperative education method of instruction.

"Training plan" means a required formal document that identifies classroom and on-the-job instruction which that contributes to the employability of each cooperative education student. (A recommended format is available from the Department of Education.)

"Work station" means an area in a classroom/laboratory that includes the necessary environment, instructional and consumable materials, and equipment to enable each student to accomplish competencies within a career and technical education course.

"Workplace readiness skills" means a list of personal qualities and people skills, professional knowledge and skills, and technology knowledge and skills identified by Virginia employers that are essential for individual workplace success and critical to Virginia's economic competitiveness. These skills will be updated as required.

"Verified unit of credit" or "verified credit" means credit awarded for a course in which a student earns a standard unit of credit and achieves a passing score on a corresponding end-of-course Standards of Learning (SOL) test or an additional test approved by the Board of Education as part of the Virginia assessment program.

Part II
Administration of Career and Technical Education Programs

8VAC20-120-30. State/federal financial assistance.

Financial assistance shall be provided to support the operation, improvement, and expansion of career and technical education.

1. Financial assistance provided through entitlements resulting from full-time equivalent student enrollments shall be used to support career and technical education program operation.

2. Financial assistance provided through categorical entitlements shall be used to support the following:

a. Principals and assistant principals of technical education centers if at least 50% of their time is spent in career and technical education program administration or supervision;

b. Extended contracts of instructors for activities related to the coordination, development, or improvement of career and technical education programs;

c. Equipment included on the Recommended Equipment Approved for Career and Technical Education Programs lists by the Department of Education or local option approved by the Department of Education; and

d. Adult occupational career and technical education to provide opportunities for adults to prepare for initial employment, retraining, or career advancement.; and

e. Funding for industry credentials appearing on the Virginia Board of Education approved list.

3. No less than 60% of federal funds may be expended on required expenditures and up to 40% may be spent on permissive uses of funds as identified in the Perkins Act of 2006. If a school division does not meet the Perkins Act of 2006 performance measures, then the department may direct local expenditures toward uses of funds to improve the division's performance.

8VAC20-120-40. Local career and technical education plan.

Each eligible participant shall submit to the Department of Education a local career and technical education plan for review and approval. The local plan will be submitted as specified in federal legislation. In addition to the local career and technical education plan, an An annual budget funding application will shall be submitted to the department for review and approval.

8VAC20-120-50. Career and Technical Education Advisory Council.

Each local education agency or region shall establish a general career and technical education advisory council to provide recommendations to the local educational agency (or board) on current job needs and the relevancy of career and technical education programs offered and to assist in the development, implementation, and evaluation of the local plan and application.

1. Councils shall be composed of members of the public, including students, teachers, parents, and representatives from business, industry, and labor, with appropriate representation of both sexes and racial and ethnic minorities groups found in the school, community, or region served by the council.

2. The council shall meet at regular intervals during the year to assist in the planning, implementing, and assessing of career and technical education programs.

8VAC20-120-70. Reporting requirements.

Local education agencies shall provide data on career and technical education for federal and state accountability requirements, planning, and evaluation as prescribed by federal legislation and the Department of Education.

Local education agencies shall participate in the federal program monitoring as prescribed by the Department of Education and as required by the Perkins Act of 2006.

8VAC20-120-80. Management of equipment inventory.

Local education agencies shall maintain a current inventory of all equipment items purchased in whole or in part with federal or state funds. Equipment purchased with state funds must:

1. Be acquired in accordance with state procurement laws and regulations;

2. Include a local match equal to the amount of state funding that would provide maintenance of effort; and

3. Be listed itemized on the Recommended Equipment Approved for Career and Technical Education Programs list provided by the department. Department of Education or local option approved by the Department of Education.

Equipment purchased with combined state and federal funds must be used in accordance with provisions of the Carl D. Perkins Vocational Career and Technical Education Act of 1998 2006, and acquired and disposed of in accordance with federal Education Department General Administrative Regulations (EDGAR) and appropriate state procurement laws and regulations.

Part III
Operation of Career and Technical Education Programs

8VAC20-120-100. Access to career and technical education programs.

Career and technical education programs administered by local education agencies receiving federal or state education funds shall be made equally available and accessible to all persons and, regardless specifically prohibits discrimination on the basis of sex, race, creed, age, color, disability, or national origin, religion, age, political affiliation, or veteran status, or against otherwise qualified persons with disabilities.

8VAC20-120-110. New career and technical education programs.

The need for new occupational career and technical preparation programs shall be based on student interests and labor market demands needs.

8VAC20-120-120. Program requirements.

A. Career and technical education programs shall be competency based and meet the following criteria:

1. Career and technical education programs are aligned with states' career clusters and career pathways that allow for utilization with academic and career plans;

2. State-established, industry-validated competencies are identified and stated;

2. 3. Competencies are specified to students prior to instruction;

3. 4. Measures for successful performance of individual competencies are identified, stated, and used to evaluate achievement of competencies;

4. 5. A system exists for rating and documenting the competency performance of each student; and

5. 6. Competencies shall address all aspects of the an industry and employability workplace readiness skills.

B. Performance measures, as determined by the Department of Education, will be achieved annually.

C. Career and technical education programs must be provided in middle and secondary schools. The middle school must include a minimum of one career and technical offering. Each secondary school shall provide a minimum of three career and technical program areas to include a minimum of 11 course offerings.

D. Career and technical education programs must provide industry credentialing, certification, and licensure as approved by the Board of Education to meet requirements for verified credit.

8VAC20-120-130. Individualized programs for students with disabilities.

Essential competency profiles provided by the Department of Education for career and technical education courses may be modified for students with Individualized Education Programs (IEP's) (IEPs) or Section 504 Plans who are enrolled in career and technical education courses. Such modification shall be made in conformance with IEP requirements as stated in Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81). The modified list of essential competencies must, as a group, be selected so that student attainment of the essential competencies prepares the student for a job or occupation career.

8VAC20-120-140. Cooperative education.

A Career and technical education programs using the cooperative education method of instruction shall:

1. Develop and follow a training plan and training agreement shall be developed and followed for each student receiving training through cooperative education.

1. Career and technical education programs using the cooperative education method of instruction shall:

a. Be limited to an average of 20 students per instructor per class period with no class being more than 24 where the cooperative education method of instruction is required;

b. Have a class period assigned to the instructor for on-the-job coordination for each 20 students participating in on-the-job training; and

c. Specify provisions for instructor travel for on-the-job coordination.

2. Parties to the training agreement shall include the student, parent or guardian, instructor, employer, and a school administrator.

2. Specify provisions for instructor travel for on-the-job coordination.

8VAC20-120-150. Maximum class size.

Enrollments in career and technical education courses shall not exceed the number of individual work stations.

1. Career and technical education laboratory classes that use equipment that has been identified by the U.S. Department of Labor for hazardous occupations shall be limited to a maximum of 20 students per laboratory. The career and technical education courses that have this restriction are published annually by the Virginia Department of Education.

2. Career and technical education courses designed specifically and approved for students who are disadvantaged shall be limited to an average of 15 students per instructor per class period with no class being more than 18.

3. Career and technical education courses designed specifically and approved for students with disabilities shall be limited to an average of 10 students per instructor per class period with no class being more than 12 or up to an average of 12 students per class period with no class being more than 15 where an instructional aide is provided.

4. Career and technical education programs offering classes that require the cooperative education method of instruction shall:

a. Be limited to an average of 20 students per instructor per class period with no class being more than 24; and

b. Have a class period assigned to the instructor for on-the-job coordination for each 20 students participating in the on-the-job training.

8VAC20-120-160. Career and technical education student organizations.

A. All career and technical education students shall be provided opportunities to participate in instructional activities of the local organization.

B. A career and technical education student organizations organization shall be an integral and active part of each secondary career and technical program (grades 9, 10, 11, 12) offered.

C. Each middle school career and technical education program (grades 6, 7, 8) offered shall include co-curricular instructional activities related to the respective career and technical education student organization.

D. Where dues are collected for membership in such organizations, payment of such dues shall not determine a student's participation in instructional activities of the local organization.

8VAC20-120-170. Student safety.

A. Each career and technical education program shall include health and safety standards, including protective eye devices, that are applicable to the operation of that program, which that shall be made an integral part of program instruction.

B. Each career and technical education program shall comply with applicable federal and state laws and regulations related to health and safety.

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-120)

Expenditure Structure, May 2001, Department of Planning and Budget.

Guidelines for Academic and Career Plans, Virginia Department of Education, September 17, 2009.

Title of Regulation: 8VAC20-630. Standards for State-Funded Remedial Programs (amending 8VAC20-630-20; repealing 8VAC20-630-50).

Statutory Authority: § 22.1-199.2 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 4, 2011.

Effective Date: March 21, 2011.

Agency Contact: Margaret Roberts, Executive Assistant for Board Relations, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-199.2 of the Code of Virginia requires the Board of Education to promulgate regulations for establishing standards for remediation programs. Chapter 61 of the 2010 Acts of Assembly removed the local school division reporting requirements for state-funded remedial programs.

Purpose: The proposed technical amendment removes reporting requirements for local school divisions as data needed for the Virginia Department of Education to analyze state-funded remedial programs is now available through the department's internal data information management system. Specifically, the department can track and analyze data for students coded as remediation recovery. In the Guidance Document Governing Certain Provisions of the Regulations Establishing Standards for Accrediting Public Schools in Virginia, remediation recovery is defined as a voluntary program that schools may implement to encourage successful remediation of students who do not pass certain Standards of Learning (SOL) tests in grades K-8 and high school reading and mathematics. Schools are required to maintain evidence of a student's participation in a remediation recovery program along with the scores of any SOL tests taken following remediation in the student's record. There is no need to burden school divisions with unnecessary reporting as a student's participation in a remediation recovery program is now documented within the student's test record. The amendments remove the burden of reporting requirements for state-funded remedial programs for school divisions.

Rationale for Using Fast-Track Process: The amendments to 8VAC20-630 are technical amendments to conform with the intent and requirements of Chapter 61 of the 2010 Acts of Assembly.

Substance: The amendments remove the burden of reporting requirements for state-funded remedial programs for school divisions. At the time the regulation was approved, data regarding state-funded programs was not available to the department by any other means. Presently, data related to an analysis of state-funded remedial programs can be obtained through the department's internal data information management system.

Issues: The primary advantage of this regulation is to eliminate the burden of reporting data that can be obtained through the department's internal data management system. There are no disadvantages to the public or to regulated entities.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 61 of the 2010 Acts of Assembly implemented a reduction in reporting requirements for local school divisions. In particular, the changes to § 22.1-199.2 of the Code of Virginia governing remediation standards removes specific types of data that must be reported to the Board of Education (Board). Consequently, the Board proposes to repeal from these regulations specified reporting requirements for state-funded remedial programs. Additionally the Board proposes to no longer require that local school divisions submit their local remediation plans for approval.

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

Estimated Economic Impact. The current regulations require that annually each local school division collect and report to the Department of Education (Department) the following data pertaining to eligible students:

1. The number of students failing a state-sponsored test required by the Standards of Quality or Standards of Accreditation;

2. A demographic profile of students attending state-funded remedial programs;

3. The academic status of each student attending state-funded remedial programs;

4. The types of instruction offered;

5. The length of the program;

6. The cost of the program;

7. The number of un-graded and disabled students, and those with limited English proficiency;

8. As required, the pass rate on Standards of Learning assessments; and

9. The percentage of students at each grade level who have met their remediation goals.

Pursuant to Chapter 61 of the 2010 Acts of Assembly, the Board proposes to no longer require that school divisions report the above data. All of the above data is now available to the Department and Board independent of the school divisions reporting through the Department's internal data information management system. The Department estimates that on average each of the 132 local school divisions spend approximately 20 hours of staff time to collect and report the data and the Department spends about 40 hours of staff time handling the incoming information. Thus, the repeal of this reporting requirement will save approximately 2,680 hours¹ of staff time statewide, while not reducing the availability of useful data.

Also, the current regulations require that local school divisions submit their local remediation plans to the Board for approval. According to the Department, in practice the plans are essentially a checklist of requirements that are (and will continue to be) stated elsewhere in the regulations; and there is little practical value for the Board and the Department to receive them. Thus, the Board also proposes to repeal the requirement that local school divisions submit their local remediation plans to the Board for approval. The Department estimates that this would save on average 8 hours of staff time per school division and 20 to 25 hours of Department staff time, totaling approximately 1,080 hours² of saved staff time statewide.

Businesses and Entities Affected. The proposed amendments affect the 132 public school divisions in the Commonwealth as well as the Board of Education and the Department of Education.

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

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

___________________

¹ (132 x 20) + 40 = 2,680

² (132 x 8) + 20 = 1, 076; (132 x 8) + 25 = 1, 081; or approximately 1,080

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act process.

Summary:

Chapter 61 of the 2010 Acts of Assembly implemented a reduction in reporting requirements for local school divisions. In particular, the changes to § 22.1-199.2 of the Code of Virginia governing remediation standards remove specific types of data that must be reported to the Board of Education. Consequently, the board proposes to repeal the specified reporting requirements for state-funded remedial programs from the regulations. Additionally the board proposes to no longer require that local school divisions submit their local remediation plans for approval.

8VAC20-630-20. Remediation plan development and approval.

Each local school division shall develop a local remediation plan designed to strengthen and improve the academic achievement of eligible students. Local school divisions shall submit these plans at a time to be determined by the Superintendent of Public Instruction for approval by the Board of Education. Following approval of the plan, each local school division shall submit a budget for the remediation plan that identifies the sources of state funds in the plan.

8VAC20-630-50. Reporting requirements. (Repealed.)

Annually, each local school division shall collect and report to the Department of Education, on-line or on forms provided by the department, the following data pertaining to eligible students:

1. The number of students failing a state-sponsored test required by the Standards of Quality or Standards of Accreditation;

2. A demographic profile of students attending state-funded remedial programs;

3. The academic status of each student attending state-funded remedial programs;

4. The types of instruction offered;

5. The length of the program;

6. The cost of the program;

7. The number of ungraded and disabled students, and those with limited English proficiency;

8. As required, the pass rate on Standards of Learning assessments; and

9. The percentage of students at each grade level who have met their remediation goals.

Titles of Regulations: 9VAC5-50. New and Modified Stationary Sources (Rev. G10) (amending 9VAC5-50-400, 9VAC5-50-410).

9VAC5-60. Hazardous Air Pollutant Sources (Rev. G10) (amending 9VAC5-60-60, 9VAC5-60-90, 9VAC5-60-100).

Statutory Authority: § 10.1-1308 of the Code of Virginia; § 112 of the federal Clean Air Act; 40 CFR Parts 61 and 63.

Effective Date: March 2, 2011.

Agency Contact: Karen G. Sabasteanski, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 698-4510, TTY (804) 698-4021, or email karen.sabasteanski@deq.virginia.gov.

Summary:

The amendments update state regulations that incorporate by reference certain federal regulations to reflect the Code of Federal Regulations as published on July 1, 2010. Below is a list of the new standards in the federal regulations that are being incorporated into the regulations by reference:

1. 40 CFR Part 60, Standards of performance for new stationary sources: No new NSPSs are being incorporated; new provisions to the current standard for Coal Preparation and Processing Plants (Subpart Y) have been added, and the date of the Code of Federal Regulations book being incorporated by reference is being updated to the latest version.

2. 40 CFR Part 61, National emissions standards for hazardous air pollutants: No new NESHAPs are being incorporated; however, the date of the Code of Federal Regulations book being incorporated by reference is being updated to the latest version.

3. 40 CFR Part 63, national emissions standards for hazardous air pollutants for source categories: 5 new MACTs are being incorporated: Chemical Manufacturing Area Sources (Subpart VVVVVV, 40 CFR 63.11494-11503), Asphalt Processing and Asphalt Roofing Manufacturing Area Sources (Subpart AAAAAAA, 40 CFR 63.11559-11567), Paints and Allied Products Manufacturing Area Sources (Subpart CCCCCCC, 40 CFR 63.11599-11638), Chemical Preparations Industry Area Sources (Subpart BBBBBBB, 40 CFR 63.11579-11588), and Prepared Feeds Manufacturing Area Sources (Subpart DDDDDDD, 40 CFR 63.11619-11638). The date of the Code of Federal Regulations book being incorporated by reference is being updated to the latest version.

Article 5
Environmental Protection Agency Standards of Performance for New Stationary Sources (Rule 5-5)

9VAC5-50-400. General.

The U.S. Environmental Protection Agency Regulations on Standards of Performance for New Stationary Sources (NSPSs), as promulgated in 40 CFR Part 60 and designated in 9VAC5-50-410 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-50-420. The complete text of the subparts in 9VAC5-50-410 incorporated herein by reference is contained in 40 CFR Part 60. The 40 CFR section numbers appearing under each subpart in 9VAC5-50-410 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2009) (2010) in effect July 1, 2009 2010. In making reference to the Code of Federal Regulations, 40 CFR Part 60 means Part 60 of Title 40 of the Code of Federal Regulations; 40 CFR 60.1 means 60.1 in Part 60 of Title 40 of the Code of Federal Regulations.

9VAC5-50-410. Designated standards of performance.

Subpart A - General Provisions.

40 CFR 60.1 through 40 CFR 60.3, 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11 through 40 CFR 60.15, 40 CFR 60.18 through 40 CFR 60.19

(applicability, definitions, units and abbreviations, notification and recordkeeping, performance tests, compliance, circumvention, monitoring requirements, modification, reconstruction, general control device requirements, and general notification and reporting requirements)

Subpart B - Not applicable.

Subpart C - Not applicable.

Subpart Ca - Reserved.

Subpart Cb - Not applicable.

Subpart Cc - Not applicable.

Subpart Cd - Not applicable.

Subpart Ce - Not applicable.

Subpart D - Fossil-Fuel Fired Steam Generators for which Construction is Commenced after August 17, 1971.

40 CFR 60.40 through 40 CFR 60.46

(fossil-fuel fired steam generating units of more than 250 million Btu per hour heat input rate, and fossil-fuel fired and wood-residue fired steam generating units capable of firing fossil fuel at a heat input rate of more than 250 million Btu per hour)

Subpart Da - Electric Utility Steam Generating Units for which Construction is Commenced after September 18, 1978.

40 CFR 60.40a through 40 CFR 60.49a

(electric utility steam generating units capable of combusting more than 250 million Btu per hour heat input of fossil fuel (either alone or in combination with any other fuel); electric utility combined cycle gas turbines capable of combusting more than 250 million Btu per hour heat input in the steam generator)

Subpart Db - Industrial-Commercial-Institutional Steam Generating Units.

40 CFR 60.40b through 40 CFR 60.49b

(industrial-commercial-institutional steam generating units which have a heat input capacity from combusted fuels of more than 100 million Btu per hour)

Subpart Dc - Small Industrial-Commercial-Institutional Steam Generating Units.

40 CFR 60.40c through 40 CFR 60.48c

(industrial-commercial-institutional steam generating units which have a heat input capacity of 100 million Btu per hour or less, but greater than or equal to 10 million Btu per hour)

Subpart E - Incinerators.

40 CFR 60.50 through 40 CFR 60.54

(incinerator units of more than 50 tons per day charging rate)

Subpart Ea - Municipal Waste Combustors for which Construction is Commenced after December 20, 1989, and on or before September 20, 1994

40 CFR 60.50a through 40 CFR 60.59a

(municipal waste combustor units with a capacity greater than 250 tons per day of municipal-type solid waste or refuse-derived fuel)

Subpart Eb - Large Municipal Combustors for which Construction is Commenced after September 20, 1994, or for which Modification or Reconstruction is Commenced after June 19, 1996

40 CFR 60.50b through 40 CFR 60.59b

(municipal waste combustor units with a capacity greater than 250 tons per day of municipal-type solid waste or refuse-derived fuel)

Subpart Ec - Hospital/Medical/Infectious Waste Incinerators for which Construction is Commenced after June 20, 1996

40 CFR 60.50c through 40 CFR 60.58c

(hospital/medical/infectious waste incinerators that combust any amount of hospital waste and medical/infectious waste or both)

Subpart F - Portland Cement Plants.

40 CFR 60.60 through 40 CFR 60.64

(kilns, clinker coolers, raw mill systems, finish mill systems, raw mill dryers, raw material storage, clinker storage, finished product storage, conveyor transfer points, bagging and bulk loading and unloading systems)

Subpart G - Nitric Acid Plants.

40 CFR 60.70 through 40 CFR 60.74

(nitric acid production units)

Subpart H - Sulfuric Acid Plants.

40 CFR 60.80 through 40 CFR 60.85

(sulfuric acid production units)

Subpart I - Hot Mix Asphalt Facilities.

40 CFR 60.90 through 40 CFR 60.93

(dryers; systems for screening, handling, storing and weighing hot aggregate; systems for loading, transferring and storing mineral filler; systems for mixing asphalt; and the loading, transfer and storage systems associated with emission control systems)

Subpart J - Petroleum Refineries.

40 CFR 60.100 through 40 CFR 60.106

(fluid catalytic cracking unit catalyst regenerators, fluid catalytic cracking unit incinerator-waste heat boilers and fuel gas combustion devices)

Subpart K - Storage Vessels for Petroleum Liquids for which Construction, Reconstruction, or Modification Commenced after June 11, 1973, and prior to May 19, 1978.

40 CFR 60.110 through 40 CFR 60.113

(storage vessels with a capacity greater than 40,000 gallons)

Subpart Ka - Storage Vessels for Petroleum Liquids for which Construction, Reconstruction, or Modification Commenced after May 18, 1978, and prior to July 23, 1984.

40 CFR 60.110a through 40 CFR 60.115a

(storage vessels with a capacity greater than 40,000 gallons)

Subpart Kb - Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for which Construction, Reconstruction, or Modification Commenced after July 23, 1984.

40 CFR 60.110b through 40 CFR 60.117b

(storage vessels with capacity greater than or equal to 10,566 gallons)

Subpart L - Secondary Lead Smelters.

40 CFR 60.120 through 40 CFR 60.123

(pot furnaces of more than 550 pound charging capacity, blast (cupola) furnaces and reverberatory furnaces)

Subpart M - Secondary Brass and Bronze Production Plants.

40 CFR 60.130 through 40 CFR 60.133

(reverberatory and electric furnaces of 2205 pound or greater production capacity and blast (cupola) furnaces of 550 pounds per hour or greater production capacity)

Subpart N - Primary Emissions from Basic Oxygen Process Furnaces for which Construction is Commenced after June 11, 1973.

40 CFR 60.140 through 40 CFR 60.144

(basic oxygen process furnaces)

Subpart Na - Secondary Emissions from Basic Oxygen Process Steelmaking Facilities for which Construction is Commenced after January 20, 1983.

40 CFR 60.140a through 40 CFR 60.145a

(facilities in an iron and steel plant: top-blown BOPFs and hot metal transfer stations and skimming stations used with bottom-blown or top-blown BOPFs)

Subpart O - Sewage Treatment Plants.

40 CFR 60.150 through 40 CFR 60.154

(incinerators that combust wastes containing more than 10% sewage sludge (dry basis) produced by municipal sewage treatment plants or incinerators that charge more than 2205 pounds per day municipal sewage sludge (dry basis))

Subpart P - Primary Copper Smelters.

40 CFR 60.160 through 40 CFR 60.166

(dryers, roasters, smelting furnaces, and copper converters)

Subpart Q - Primary Zinc Smelters.

40 CFR 60.170 through 40 CFR 60.176

(roasters and sintering machines)

Subpart R - Primary Lead Smelters

40 CFR 60.180 through 40 CFR 60.186

(sintering machines, sintering machine discharge ends, blast furnaces, dross reverberatory furnaces, electric smelting furnaces and converters)

Subpart S - Primary Aluminum Reduction Plants.

40 CFR 60.190 through 40 CFR 60.195

(potroom groups and anode bake plants)

Subpart T - Phosphate Fertilizer Industry: Wet-Process Phosphoric Acid Plants.

40 CFR 60.200 through 40 CFR 60.204

(reactors, filters, evaporators, and hot wells)

Subpart U - Phosphate Fertilizer Industry: Superphosphoric Acid Plants.

40 CFR 60.210 through 40 CFR 60.214

(evaporators, hot wells, acid sumps, and cooling tanks)

Subpart V - Phosphate Fertilizer Industry: Diammonium Phosphate Plants.

40 CFR 60.220 through 40 CFR 60.224

(reactors, granulators, dryers, coolers, screens, and mills)

Subpart W - Phosphate Fertilizer Industry: Triple Superphosphate Plants.

40 CFR 60.230 through 40 CFR 60.234

(mixers, curing belts (dens), reactors, granulators, dryers, cookers, screens, mills, and facilities which store run-of-pile triple superphosphate)

Subpart X - Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities.

40 CFR 60.240 through 40 CFR 60.244

(storage or curing piles, conveyors, elevators, screens and mills)

Subpart Y - Coal Preparation and Processing Plants.

40 CFR 60.250 through 40 CFR 60.254 60.258

(plants which process more than 200 tons per day: thermal dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and coal transfer and loading systems)

Subpart Z - Ferroalloy Production Facilities.

40 CFR 60.260 through 40 CFR 60.266

(electric submerged arc furnaces which produce silicon metal, ferrosilicon, calcium silicon, silicomanganese zirconium, ferrochrome silicon, silvery iron, high-carbon ferrochrome, charge chrome, standard ferromanganese, silicomanganese, ferromanganese silicon or calcium carbide; and dust-handling equipment)

Subpart AA - Steel Plants: Electric Arc Furnaces Constructed after October 21, 1974, and on or before August 17, 1983.

40 CFR 60.270 through 40 CFR 60.276

(electric arc furnaces and dust-handling systems that produce carbon, alloy or specialty steels)

Subpart AAa - Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed after August 17, 1983.

40 CFR 60.270a through 40 CFR 60.276a

(electric arc furnaces, argon-oxygen decarburization vessels, and dust-handling systems that produce carbon, alloy, or specialty steels)

Subpart BB - Kraft Pulp Mills.

40 CFR 60.280 through 40 CFR 60.285

(digester systems, brown stock washer systems, multiple effect evaporator systems, black liquor oxidation systems, recovery furnaces, smelt dissolving tanks, lime kilns, condensate strippers and kraft pulping operations)

Subpart CC - Glass Manufacturing Plants.

40 CFR 60.290 through 40 CFR 60.296

(glass melting furnaces)

Subpart DD - Grain Elevators.

40 CFR 60.300 through 40 CFR 60.304

(grain terminal elevators/grain storage elevators: truck unloading stations, truck loading stations, barge and ship unloading stations, barge and ship loading stations, railcar unloading stations, railcar loading stations, grain dryers, and all grain handling operations)

Subpart EE - Surface Coating of Metal Furniture.

40 CFR 60.310 through 40 CFR 60.316

(metal furniture surface coating operations in which organic coatings are applied)

Subpart FF - (Reserved)

Subpart GG - Stationary Gas Turbines.

40 CFR 60.330 through 40 CFR 60.335

(stationary gas turbines with a heat input at peak load equal to or greater than 10 million Btu per hour, based on the lower heating value of the fuel fired)

Subpart HH - Lime Manufacturing Plants.

40 CFR 60.340 through 40 CFR 60.344

(each rotary lime kiln)

Subparts II through JJ - (Reserved)

Subpart KK - Lead-Acid Battery Manufacturing Plants.

40 CFR 60.370 through 40 CFR 60.374

(lead-acid battery manufacturing plants that produce or have the design capacity to produce in one day (24 hours) batteries containing an amount of lead equal to or greater than 6.5 tons: grid casting facilities, paste mixing facilities, three-process operation facilities, lead oxide manufacturing facilities, lead reclamation facilities, and other lead-emitting operations)

Subpart LL - Metallic Mineral Processing Plants.

40 CFR 60.380 through 40 CFR 60.386

(each crusher and screen in open-pit mines; each crusher, screen, bucket elevator, conveyor belt transfer point, thermal dryer, product packaging station, storage bin, enclosed storage area, truck loading station, truck unloading station, railcar loading station, and railcar unloading station at the mill or concentrator with the following exceptions. All facilities located in underground mines are exempted from the provisions of this subpart. At uranium ore processing plants, all facilities subsequent to and including the benefication of uranium ore are exempted from the provisions of this subpart)

Subpart MM - Automobile and Light Duty Truck Surface Coating Operations.

40 CFR 60.390 through 40 CFR 60.397

(prime coat operations, guide coat operations, and top-coat operations)

Subpart NN - Phosphate Rock Plants.

40 CFR 60.400 through 40 CFR 60.404

(phosphate rock plants which have a maximum plant production capacity greater than 4 tons per hour: dryers, calciners, grinders, and ground rock handling and storage facilities, except those facilities producing or preparing phosphate rock solely for consumption in elemental phosphorous production)

Subpart OO - (Reserved)

Subpart PP - Ammonium Sulfate Manufacture.

40 CFR 60.420 through 40 CFR 60.424

(ammonium sulfate dryer within an ammonium sulfate manufacturing plant in the caprolactum by-product, synthetic, and coke oven by-product sectors of the ammonium sulfate industry)

Subpart QQ - Graphic Arts Industry: Publication Rotogravure Printing.

40 CFR 60.430 through 40 CFR 60.435

(publication rotogravure printing presses, except proof presses)

Subpart RR - Pressure Sensitive Tape and Label Surface Coating Operations.

40 CFR 60.440 through 40 CFR 60.447

(pressure sensitive tape and label material coating lines)

Subpart SS - Industrial Surface Coating: Large Appliances.

40 CFR 60.450 through 40 CFR 60.456

(surface coating operations in large appliance coating lines)

Subpart TT - Metal Coil Surface Coating.

40 CFR 60.460 through 40 CFR 60.466

(metal coil surface coating operations: each prime coat operation, each finish coat operation, and each prime and finish coat operation combined when the finish coat is applied wet on wet over the prime coat and both coatings are cured simultaneously)

Subpart UU - Asphalt Processing and Asphalt Roofing Manufacture.

40 CFR 60.470 through 40 CFR 60.474

(each saturator and each mineral handling and storage facility at asphalt roofing plants; and each asphalt storage tank and each blowing still at asphalt processing plants, petroleum refineries, and asphalt roofing plants)

Subpart VV - Equipment Leaks of Volatile Organic Compounds in the Synthetic Organic Chemicals Manufacturing Industry for which Construction, Reconstruction, or Modification Commenced After January 5, 1981, and On or Before November 7, 2006.

40 CFR 60.480 through 40 CFR 60.489

(all equipment within a process unit in a synthetic organic chemicals manufacturing plant)

Subpart VVa - Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry for Which Construction, Reconstruction, or Modification Commenced After November 7, 2006.

40 CFR 60.480a through 40 CFR 60.489a

(all equipment within a process unit in a synthetic organic chemicals manufacturing plant)

Subpart WW - Beverage Can Surface Coating Industry.

40 CFR 60.490 through 40 CFR 60.496

(beverage can surface coating lines: each exterior base coat operation, each overvarnish coating operation, and each inside spray coating operation)

Subpart XX - Bulk Gasoline Terminals.

40 CFR 60.500 through 40 CFR 60.506

(total of all loading racks at a bulk gasoline terminal which deliver liquid product into gasoline tank trucks)

Subparts YY through ZZ - (Reserved)

Subpart AAA - New Residential Wood Heaters.

40 CFR 60.530 through 40 CFR 60.539b

(wood heaters)

Subpart BBB - Rubber Tire Manufacturing Industry.

40 CFR 60.540 through 40 CFR 60.548

(each undertread cementing operation, each sidewall cementing operation, each tread end cementing operation, each bead cementing operation, each green tire spraying operation, each Michelin-A operation, each Michelin-B operation, and each Michelin-C automatic operation)

Subpart CCC - (Reserved)

Subpart DDD - Volatile Organic Compound (VOC) Emissions from the Polymer Manufacturing Industry.

40 CFR 60.560 through 40 CFR 60.566

(for polypropylene and polyethylene manufacturing using a continuous process that emits continuously or intermittently: all equipment used in the manufacture of these polymers. For polystyrene manufacturing using a continuous process that emits continuously: each material recovery section. For poly(ethylene terephthalate) manufacturing using a continuous process that emits continuously: each polymerization reaction section; if dimethyl terephthalate is used in the process, each material recovery section is also an affected facility; if terephthalic acid is used in the process, each raw materials preparation section is also an affected facility. For VOC emissions from equipment leaks: each group of fugitive emissions equipment within any process unit, excluding poly(ethylene terephthalate) manufacture.)

Subpart EEE - (Reserved)

Subpart FFF - Flexible Vinyl and Urethane Coating and Printing.

40 CFR 60.580 through 40 CFR 60.585

(each rotogravure printing line used to print or coat flexible vinyl or urethane products)

Subpart GGG - Equipment Leaks of VOC in Petroleum Refineries for which Construction, Reconstruction, or Modification Commenced After January 4, 1983, and On or Before November 7, 2006.

40 CFR 60.590 through 40 CFR 60.593

(each compressor, valve, pump pressure relief device, sampling connection system, open-ended valve or line, and flange or other connector in VOC service)

Subpart GGGa - Equipment Leaks of VOC in Petroleum Refineries for which Construction, Reconstruction, or Modification Commenced After November 7, 2006.

40 CFR 60.590a through 40 CFR 60.593a

(each compressor, valve, pump pressure relief device, sampling connection system, open-ended valve or line, and flange or other connector in VOC service)

Subpart HHH - Synthetic Fiber Production Facilities.

40 CFR 60.600 through 40 CFR 60.604

(each solvent-spun synthetic fiber process that produces more than 500 megagrams of fiber per year)

Subpart III - Volatile Organic Compound (VOC) Emissions from the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Air Oxidation Unit Processes.

40 CFR 60.610 through 40 CFR 60.618

(each air oxidation reactor not discharging its vent stream into a recovery system and each combination of an air oxidation reactor or two or more air oxidation reactors and the recovery system into which the vent streams are discharged)

Subpart JJJ - Petroleum Dry Cleaners.

40 CFR 60.620 through 40 CFR 60.625

(facilities located at a petroleum dry cleaning plant with a total manufacturers' rated dryer capacity equal to or greater than 84 pounds: petroleum solvent dry cleaning dryers, washers, filters, stills, and settling tanks)

Subpart KKK - Equipment Leaks of VOC from Onshore Natural Gas Processing Plants.

40 CFR 60.630 through 40 CFR 60.636

(each compressor in VOC service or in wet gas service; each pump, pressure relief device, open-ended valve or line, valve, and flange or other connector that is in VOC service or in wet gas service, and any device or system required by this subpart)

Subpart LLL - Onshore Natural Gas Processing: Sulfur Dioxide Emissions.

40 CFR 60.640 through 40 CFR 60.648

(facilities that process natural gas: each sweetening unit, and each sweetening unit followed by a sulfur recovery unit)

Subpart MMM - (Reserved)

Subpart NNN - Volatile Organic Compound (VOC) Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations.

40 CFR 60.660 through 40 CFR 60.668

(each distillation unit not discharging its vent stream into a recovery system, each combination of a distillation unit or of two or more units and the recovery system into which their vent streams are discharged)

Subpart OOO - Nonmetallic Mineral Processing Plants.

40 CFR 60.670 through 40 CFR 60.676

(facilities in fixed or portable nonmetallic mineral processing plants: each crusher, grinding mill, screening operation, bucket elevator, belt conveyor, bagging operation, storage bin, enclosed truck or railcar loading station)

Subpart PPP - Wool Fiberglass Insulation Manufacturing Plants.

40 CFR 60.680 through 40 CFR 60.685

(each rotary spin wool fiberglass insulation manufacturing line)

Subpart QQQ - VOC Emissions from Petroleum Refinery Wastewater Systems.

40 CFR 60.690 through 40 CFR 60.699

(individual drain systems, oil-water separators, and aggregate facilities in petroleum refineries)

Subpart RRR - Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes.

40 CFR 60.700 through 40 CFR 60.708

(each reactor process not discharging its vent stream into a recovery system, each combination of a reactor process and the recovery system into which its vent stream is discharged, and each combination of two or more reactor processes and the common recovery system into which their vent streams are discharged)

Subpart SSS - Magnetic Tape Coating Facilities.

40 CFR 60.710 through 40 CFR 60.718

(each coating operation and each piece of coating mix preparation equipment)

Subpart TTT - Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines.

40 CFR 60.720 through 40 CFR 60.726

(each spray booth in which plastic parts for use in the manufacture of business machines receive prime coats, color coats, texture coats, or touch-up coats)

Subpart UUU - Calciners and Dryers in Mineral Industries.

40 CFR 60.730 through 40 CFR 60.737

(each calciner and dryer at a mineral processing plant)

Subpart VVV - Polymeric Coating of Supporting Substrates Facilities.

40 CFR 60.740 through 40 CFR 60.748

(each coating operation and any onsite coating mix preparation equipment used to prepare coatings for the polymeric coating of supporting substrates)

Subpart WWW - Municipal Solid Waste Landfills.

40 CFR 60.750 through 40 CFR 60.759

(municipal solid waste landfills for the containment of household and RCRA Subtitle D wastes)

Subpart AAAA - Small Municipal Waste Combustors for which Construction is Commenced after August 30, 1999, or for which Modification or Reconstruction is Commenced after June 6, 2001.

40 CFR 60.1000 through 40 CFR 60.1465

(municipal waste combustor units with a capacity less than 250 tons per day and greater than 35 tons per day of municipal solid waste or refuse-derived fuel)

Subpart BBBB - Not applicable.

Subpart CCCC - Commercial/Industrial Solid Waste Incinerators for which Construction is Commenced after November 30, 1999, or for which Modification or Construction is Commenced on or after June 1, 2001.

40 CFR 60.2000 through 40 CFR 60.2265

(an enclosed device using controlled flame combustion without energy recovery that is a distinct operating unit of any commercial or industrial facility, or an air curtain incinerator without energy recovery that is a distinct operating unit of any commercial or industrial facility)

Subpart DDDD - Not applicable.

Subpart EEEE - Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Reconstruction Is Commenced on or After June 16, 2006.

40 CFR 60.2880 through 40 CFR 60.2977

(very small municipal waste combustion units with the capacity to combust less than 35 tons per day of municipal solid waste or refuse-derived fuel, and institutional waste incineration units owned or operated by an organization having a governmental, educational, civic, or religious purpose)

Subpart FFFF - Reserved.

Subpart GGGG - Reserved.

Subpart HHHH - Reserved.

Subpart IIII - Stationary Compression Ignition Internal Combustion Engines.

40 CFR 60.4200 through 40 CFR 60.4219

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart JJJJ - Stationary Spark Ignition Internal Combustion Engines.

40 CFR 60.4230 through 40 CFR 60.4248

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart KKKK - Stationary Combustion Turbines.

40 CFR 60.4300 through 40 CFR 60.4420

(stationary combustion turbine with a heat input at peak load equal to or greater than 10.7 gigajoules (10 MMBtu) per hour)

Appendix A - Test methods.

Appendix B - Performance specifications.

Appendix C - Determination of Emission Rate Change.

Appendix D - Required Emission Inventory Information.

Appendix E - (Reserved)

Appendix F - Quality Assurance Procedures.

Appendix G - (Not applicable)

Appendix H - (Reserved)

Appendix I - Removable label and owner's manual.

Part II
Emission Standards

Article 1
Environmental Protection Agency National Emission Standards for Hazardous Air Pollutants (Rule 6-1)

9VAC5-60-60. General.

The Environmental Protection Agency (EPA) Regulations on National Emission Standards for Hazardous Air Pollutants (NESHAP), as promulgated in 40 CFR Part 61 and designated in 9VAC5-60-70 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-60-80. The complete text of the subparts in 9VAC5-60-70 incorporated herein by reference is contained in 40 CFR Part 61. The 40 CFR section numbers appearing under each subpart in 9VAC5-60-70 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2009) (2010) in effect July 1, 2009 2010. In making reference to the Code of Federal Regulations, 40 CFR Part 61 means Part 61 of Title 40 of the Code of Federal Regulations; 40 CFR 61.01 means 61.01 in Part 61 of Title 40 of the Code of Federal Regulations.

Article 2
Environmental Protection Agency National Emission Standards for Hazardous Air Pollutants for Source Categories (Rule 6-2)

9VAC5-60-90. General.

The Environmental Protection Agency (EPA) National Emission Standards for Hazardous Air Pollutants for Source Categories (Maximum Achievable Control Technologies, or MACTs) as promulgated in 40 CFR Part 63 and designated in 9VAC5-60-100 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-60-110. The complete text of the subparts in 9VAC5-60-100 incorporated herein by reference is contained in 40 CFR Part 63. The 40 CFR section numbers appearing under each subpart in 9VAC5-60-100 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2009) (2010) in effect July 1, 2009 2010. In making reference to the Code of Federal Regulations, 40 CFR Part 63 means Part 63 of Title 40 of the Code of Federal Regulations; 40 CFR 63.1 means 63.1 in Part 63 of Title 40 of the Code of Federal Regulations.

9VAC5-60-100. Designated emission standards.

Subpart A - General Provisions.

40 CFR 63.1 through 40 CFR 63.11; 40 CFR 63.16

(applicability, definitions, units and abbreviations, prohibited activities and circumvention, construction and reconstruction, compliance with standards and maintenance requirements, performance testing requirements, monitoring requirements, notification requirements, recordkeeping and reporting requirements, control device requirements, performance track provisions)

Subpart B - Not applicable.

Subpart C - List of Hazardous Air Pollutants, Petitions Process, Lesser Quantity Designations, Source Category List.

40 CFR 63.60, 40 CFR 63.61, 40 CFR 63.62 and 40 CFR 63.63

(deletion of caprolactam from the list of hazardous air pollutants, deletion of methyl ethyl ketone from the list of hazardous air pollutants, redefinition of glycol ethers listed as hazardous air pollutants, deletion of ethylene glycol monobutyl ether)

Subpart D - Not applicable.

Subpart E - Not applicable.

Subpart F - Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry.

40 CFR 63.100 through 40 CFR 63.106

(chemical manufacturing process units that manufacture as a primary product one or more of a listed chemical; use as a reactant or manufacture as a product, by-product, or co-product, one or more of a listed organic hazardous air pollutant; and are located at a plant site that is a major source as defined in § 112 of the federal Clean Air Act)

Subpart G - Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater.

40 CFR 63.110 through 40 CFR 63.152

(all process vents, storage vessels, transfer operations, and wastewater streams within a source subject to Subpart F, 40 CFR 63.100 through 40 CFR 63.106)

Subpart H - Organic Hazardous Air Pollutants for Equipment Leaks.

40 CFR 63.160 through 40 CFR 63.182

(pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, surge control vessels, bottoms receivers, instrumentation systems, and control devices or systems that are intended to operate in organic hazardous air pollutant service 300 hours or more during the calendar year within a source subject to the provisions of a specific subpart in 40 CFR Part 63)

Subpart I - Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks.

40 CFR 63.190 through 40 CFR 63.192

(emissions of designated organic hazardous air pollutants from processes specified in this subpart that are located at a plant site that is a major source as defined in § 112 of the federal Clean Air Act)

Subpart J - Polyvinyl Chloride and Copolymers Production.

40 CFR 63.210 through 40 CFR 63.217

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart K - Reserved.

Subpart L - Coke Oven Batteries.

40 CFR 63.300 through 40 CFR 63.313

(existing by-product coke oven batteries at a coke plant, and existing nonrecovery coke oven batteries located at a coke plant)

Subpart M - Perchlorethylene Dry Cleaning Facilities.

40 CFR 63.320 through 40 CFR 63.325

(each dry cleaning facility that uses perchlorethylene)

Subpart N - Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks.

40 CFR 63.340 through 40 CFR 63.347

(each chromium electroplating or chromium anodizing tank at facilities performing hard chromium electroplating, decorative chromium electroplating, or chromium anodizing)

Subpart O - Ethylene Oxide Commercial Sterilization and Fumigation Operations.

40 CFR 63.360 through 40 CFR 63.367

(sterilization sources using ethylene oxide in sterilization or fumigation operations)

Subpart P - Reserved.

Subpart Q - Industrial Process Cooling Towers.

40 CFR 63.400 through 40 CFR 63.406

(industrial process cooling towers that are operated with chromium-based water treatment chemicals)

Subpart R - Gasoline Distribution Facilities.

40 CFR 63.420 through 40 CFR 63.429

(bulk gasoline terminals and pipeline breakout stations)

Subpart S - Pulp and Paper Industry.

40 CFR 63.440 through 40 CFR 63.458

(processes that produce pulp, paper, or paperboard, and use the following processes and materials: kraft, soda, sulfite, or semi-chemical pulping processes using wood; or mechanical pulping processes using wood; or any process using secondary or nonwood fibers)

Subpart T - Halogenated Solvent Cleaning.

40 CFR 63.460 through 40 CFR 63.469

(each individual batch vapor, in-line vapor, in-line cold, and batch cold solvent cleaning machine that uses any solvent containing methylene chloride, perchlorethylene, trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride, or chloroform)

Subpart U - Group I Polymers and Resins.

40 CFR 63.480 through 40 CFR 63.506

(elastomer product process units that produce butyl rubber, halobutyl rubber, epichlorohydrin elastomers, ethylene propylene rubber, Hypalon™, neoprene, nitrile butadiene rubber, nitrile butadiene latex, polysulfide rubber, polybutadiene rubber/styrene butadiene rubber by solution, styrene butadiene latex, and styrene butadiene rubber by emulsion)

Subpart V - Reserved.

Subpart W - Epoxy Resins Production and Non-Nylon Polyamides Production.

40 CFR 63.520 through 40 CFR 63.527

(manufacturers of basic liquid epoxy resins and wet strength resins)

Subpart X - Secondary Lead Smeltering.

40 CFR 63.541 through 40 CFR 63.550

(at all secondary lead smelters: blast, reverbatory, rotary, and electric smelting furnaces; refining kettles; agglomerating furnaces; dryers; process fugitive sources; and fugitive dust sources)

Subpart Y - Marine Tank Vessel Tank Loading Operations.

40 CFR 63.560 through 40 CFR 63.567

(marine tank vessel unloading operations at petroleum refineries)

Subpart Z - Reserved.

Subpart AA - Phosphoric Acid Manufacturing Plants.

40 CFR 63.600 through 40 CFR 63.610

(wet-process phosphoric acid process lines, evaporative cooling towers, rock dryers, rock calciners, superphosphoric acid process lines, purified acid process lines)

Subpart BB - Phosphate Fertilizers Production Plants.

40 CFR 63.620 through 40 CFR 63.631

(diammonium and monoammonium phosphate process lines, granular triple superphosphate process lines, and granular triple superphosphate storage buildings)

Subpart CC - Petroleum Refineries.

40 CFR 63.640 through 40 CFR 63.654

(storage tanks, equipment leaks, process vents, and wastewater collection and treatment systems at petroleum refineries)

Subpart DD - Off-Site Waste and Recovery Operations.

40 CFR 63.680 through 40 CFR 63.697

(operations that treat, store, recycle, and dispose of waste received from other operations that produce waste or recoverable materials as part of their manufacturing processes)

Subpart EE - Magnetic Tape Manufacturing Operations.

40 CFR 63.701 through 40 CFR 63.708

(manufacturers of magnetic tape)

Subpart FF - Reserved.

Subpart GG - Aerospace Manufacturing and Rework Facilities.

40 CFR 63.741 through 40 CFR 63.752

(facilities engaged in the manufacture or rework of commercial, civil, or military aerospace vehicles or components)

Subpart HH - Oil and Natural Gas Production Facilities.

40 CFR 63.760 through 40 CFR 63.779

(facilities that process, upgrade, or store hydrocarbon liquids or natural gas; ancillary equipment and compressors intended to operate in volatile hazardous air pollutant service)

Subpart II - Shipbuilding and Ship Repair (Surface Coating).

40 CFR 63.780 through 40 CFR 63.788

(shipbuilding and ship repair operations)

Subpart JJ - Wood Furniture Manufacturing Operations.

40 CFR 63.800 through 40 CFR 63.819

(finishing materials, adhesives, and strippable spray booth coatings; storage, transfer, and application of coatings and solvents)

Subpart KK - Printing and Publishing Industry.

40 CFR 63.820 through 40 CFR 63.831

(publication rotogravure, product and packaging rotogravure, and wide-web printing processes)

Subpart LL - Primary Aluminum Reduction Plants.

40 CFR 63.840 through 40 CFR 63.859

(each pitch storage tank, potline, paste production plant, or anode bulk furnace associated with primary aluminum production)

Subpart MM - Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite and Stand-Alone Semichemical Pulp Mills.

40 CFR 63.860 through 40 CFR 63.868

(chemical recovery systems, direct and nondirect contact evaporator recovery furnace systems, lime kilns, sulfite combustion units, semichemical combustion units)

Subpart NN - Reserved.

Subpart OO - Tanks--Level 1.

40 CFR 63.900 through 40 CFR 63.907

(for off-site waste and recovery operations, fixed-roof tanks)

Subpart PP - Containers.

40 CFR 63.920 through 40 CFR 63.928

(for off-site waste and recovery operations, containers)

Subpart QQ - Surface Impoundments.

40 CFR 63.940 through 40 CFR 63.948

(for off-site waste and recovery operations, surface impoundment covers and vents)

Subpart RR - Individual Drain Systems.

40 CFR 63.960 through 40 CFR 63.966

(for off-site waste and recovery operations, inspection and maintenance of individual drain systems)

Subpart SS - Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process.

40 CFR 63.980 through 40 CFR 63.999

(closed vent systems, control devices, recovery devices, and routing to a fuel gas system or a process, when associated with facilities subject to a referencing subpart)

Subpart TT - Equipment Leaks - Control Level 1.

40 CFR 63.1000 through 40 CFR 63.1018

(control of air emissions from equipment leaks when associated with facilities subject to a referencing subpart)

Subpart UU - Equipment Leaks - Control Level 2.

40 CFR 63.1019 through 40 CFR 63.1039

(control of air emissions from equipment leaks when associated with facilities subject to a referencing subpart: pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, instrumentation systems, closed vent systems and control devices)

Subpart VV - Oil-Water Separators and Organic-Water Separators.

40 CFR 63.1040 through 40 CFR 63.1049

(for off-site waste and recovery operations, oil-water separators and organic-water separator roofs and vents)

Subpart WW - Storage Vessels (Tanks) - Control Level 2.

40 CFR 63.1060 through 40 CFR 63.1066

(storage vessels associated with facilities subject to a referencing subpart)

Subpart XX - Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste.

40 CFR 63.1080 through 40 CFR 63.1098

(any cooling tower system or once-through cooling water system)

Subpart YY - Generic Maximum Achievable Control Technology Standards.

40 CFR 63.1100 through 40 CFR 63.1113

(acetal resins production, acrylic and modacrylic fibers production, hydrogen fluoride production, polycarbonate production)

Subpart ZZ - Reserved.

Subpart AAA - Reserved.

Subpart BBB - Reserved.

Subpart CCC - Steel Pickling - Hydrogen Chloride Process Facilities and Hydrochloric Acid Regeneration Plants.

40 CFR 63.1155 through 40 CFR 63.1174

(steel pickling facilities that pickle carbon steel using hydrochloric acid solution, hydrochloric acid regeneration plants)

Subpart DDD - Mineral Wool Production.

40 CFR 63.1175 through 40 CFR 63.1199

(cupolas and curing ovens at mineral wool manufacturing facilities)

Subpart EEE - Hazardous Waste Combustors.

40 CFR 63.1200 through 40 CFR 63.1221

(hazardous waste combustors)

Subpart FFF - Reserved.

Subpart GGG - Pharmaceutical Production.

40 CFR 63.1250 through 40 CFR 63.1261

(pharmaceutical manufacturing operations)

Subpart HHH - Natural Gas Transmission and Storage Facilities.

40 CFR 63.1270 through 40 CFR 63.1289

(natural gas transmission and storage facilities that transport or store natural gas prior to entering the pipeline to a local distribution company or to a final end user)

Subpart III - Flexible Polyurethane Foam Production.

40 CFR 63.1290 through 40 CFR 63.1309

(flexible polyurethane foam or rebond processes)

Subpart JJJ - Group IV Polymers and Resins.

40 CFR 63.1310 through 40 CFR 63.1335

(facilities which manufacture acrylonitrile butadiene styrene resin, styrene acrylonitrile resin, methyl methacrylate butadiene styrene resin, polystyrene resin, poly(ethylene terephthalate) resin, or nitrile resin)

Subpart KKK - Reserved.

Subpart LLL - Portland Cement Manufacturing.

40 CFR 63.1340 through 40 CFR 63.1359

(kilns; in-line kilns/raw mills; clinker coolers; raw mills; finish mills; raw material dryers; raw material, clinker, or finished product storage bins; conveying system transfer points; bagging systems; bulk loading or unloading systems)

Subpart MMM - Pesticide Active Ingredient Production.

40 CFR 63.1360 through 40 CFR 63.1369

(pesticide active ingredient manufacturing process units, waste management units, heat exchange systems, and cooling towers)

Subpart NNN - Wool Fiberglass Manufacturing.

40 CFR 63.1380 through 40 CFR 63.1399

(glass melting furnaces, rotary spin wool fiberglass manufacturing lines producing bonded wool fiberglass building insulation or bonded heavy-density product)

Subpart OOO - Amino/Phenolic Resins Production.

40 CFR 63.1400 through 40 CFR 63.1419

(unit operations, process vents, storage vessels, equipment subject to leak provisions)

Subpart PPP - Polyether Polyols Production.

40 CFR 63.1420 through 40 CFR 63.1439

(polyether polyol manufacturing process units)

Subpart QQQ - Primary Copper Smelting.

40 CFR 63.1440 through 40 CFR 63.1-1459

(batch copper converters, including copper concentrate dryers, smelting furnaces, slag cleaning vessels, copper converter departments, and the entire group of fugitive emission sources)

Subpart RRR - Secondary Aluminum Production.

40 CFR 63.1500 through 40 CFR 63.1520

(scrap shredders; thermal chip dryers; scrap dryers/delacquering kilns/decoating kilns; group 2, sweat, dross-only furnaces; rotary dross coolers; processing units)

Subpart SSS - Reserved.

Subpart TTT - Primary Lead Smelting.

40 CFR 63.1541 through 40 CFR 63.1550

(sinter machines, blast furnaces, dross furnaces, process fugitive sources, fugitive dust sources)

Subpart UUU - Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units.

40 CFR 63.1560 through 40 CFR 63.1579

(petroleum refineries that produce transportation and heating fuels or lubricants, separate petroleum, or separate, crack, react, or reform an intermediate petroleum stream, or recover byproducts from an intermediate petroleum stream)

Subpart VVV - Publicly Owned Treatment Works.

40 CFR 63.1580 through 40 CFR 63.1595

(intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment)

Subpart WWW - Reserved.

Subpart XXX - Ferroalloys Production: Ferromanganese and Silicomanganese.

40 CFR 63.1620 through 40 CFR 63.1679

(submerged arc furnaces, metal oxygen refining processes, crushing and screening operations, fugitive dust sources)

Subpart YYY - Reserved.

Subpart ZZZ - Reserved.

Subpart AAAA - Municipal Solid Waste Landfills.

40 CFR 63.1930 through 40 CFR 63.1990

(municipal solid waste landfills that have accepted waste since November 8, 1987, or have additional capacity for waste deposition)

Subpart BBBB - Reserved.

Subpart CCCC - Manufacturing of Nutritional Yeast.

40 CFR 63.2130 through 40 CFR 63.2192

(fermentation vessels)

Subpart DDDD - Plywood and Composite Wood Products.

40 CFR 63.2230 through 40 CFR 63.2292

(manufacture of plywood and composite wood products by bonding wood material or agricultural fiber with resin under heat and pressure to form a structural panel or engineered wood product)

Subpart EEEE - Organic Liquids Distribution (Nongasoline).

40 CFR 63.2330 through 40 CFR 63.2406

(transfer of noncrude oil liquids or liquid mixtures that contain organic hazardous air pollutants, or crude oils downstream of the first point of custody, via storage tanks, transfer racks, equipment leak components associated with pipelines, and transport vehicles)

Subpart FFFF - Miscellaneous Organic Chemical Manufacturing.

40 CFR 63.2430 through 40 CFR 63.2550

(reaction, recovery, separation, purification, or other activity, operation, manufacture, or treatment that are used to produce a product or isolated intermediate)

Subpart GGGG - Solvent Extraction for Vegetable Oil Production.

40 CFR 63.2830 through 40 CFR 63.2872

(vegetable oil production processes)

Subpart HHHH--Wet-formed Fiberglass Mat Production.

40 CFR 63.2980 through 63.3079

(wet-formed fiberglass mat drying and curing ovens)

Subpart IIII - Surface Coating of Automobiles and Light-Duty Trucks.

40 CFR 63.3080 through 40 CFR 63.3176.

(application of topcoat to new automobile or new light-duty truck bodies or body parts)

Subpart JJJJ - Paper and Other Web Coating.

40 CFR 63.3280 through 40 CFR 63.3420

(web coating lines engaged in the coating of metal webs used in flexible packaging and in the coating of fabric substrates for use in pressure-sensitive tape and abrasive materials)

Subpart KKKK - Surface Coating of Metal Cans.

40 CFR 63.3480 through 40 CFR 63.3561

(application of coatings to a substrate using spray guns or dip tanks, including one- and two-piece draw and iron can body coating; sheetcoating; three-piece can body assembly coating; and end coating)

Subpart LLLL - Reserved.

Subpart MMMM - Surface Coating of Miscellaneous Metal Parts and Products.

40 CFR 63.3880 through 40 CFR 63.3981

(application of coatings to industrial, household, and consumer products)

Subpart NNNN - Surface Coating of Large Appliances.

40 CFR 63.4080 through 40 CFR 63.4181

(surface coating of a large appliance part or product, including cooking equipment; refrigerators, freezers, and refrigerated cabinets and cases; laundry equipment; dishwashers, trash compactors, and water heaters; and HVAC units, air-conditioning, air-conditioning and heating combination units, comfort furnaces, and electric heat pumps)

Subpart OOOO - Printing, Coating, and Dyeing of Fabrics and Other Textiles.

40 CFR 63.4280 through 40 CFR 63.4371

(printing, coating, slashing, dyeing, or finishing of fabric and other textiles)

Subpart PPPP - Surface Coating of Plastic Parts and Products.

40 CFR 63.4480 through 40 CFR 63.4581

(application of coating to a substrate using spray guns or dip tanks, including motor vehicle parts and accessories for automobiles, trucks, recreational vehicles; sporting and recreational goods; toys; business machines; laboratory and medical equipment; and household and other consumer products)

Subpart QQQQ - Surface Coating of Wood Building Products.

40 CFR 63.4680 through 40 CFR 63.4781

(finishing or laminating of wood building products used in the construction of a residential, commercial, or institutional building)

Subpart RRRR - Surface Coating of Metal Furniture.

40 CFR 63.4880 through 40 CFR 63.4981

(application of coatings to substrate using spray guns and dip tanks)

Subpart SSSS - Surface Coating of Metal Coil.

40 CFR 63.5080 through 40 CFR 63.5209

(organic coating to surface of metal coil, including web unwind or feed sections, work stations, curing ovens, wet sections, and quench stations)

Subpart TTTT - Leather Finishing Operations.

40 CFR 63.5280 through 40 CFR 63.5460

(multistage application of finishing materials to adjust and improve the physical and aesthetic characteristics of leather surfaces)

Subpart UUUU - Cellulose Products Manufacturing.

40 CFR 63.5480 through 40 CFR 63.5610

(cellulose food casing, rayon, cellulosic sponge, cellophane manufacturing, methyl cellulose, hydroxypropyl methyl cellulose, hydroxypropyl cellulose, hydroxyethyl cellulose, and carboxymethyl cellulose manufacturing industries)

Subpart VVVV - Boat Manufacturing.

40 CFR 63.5680 through 40 CFR 63.5779

(resin and gel coat operations, carpet and fabric adhesive operations, aluminum recreational boat surface coating operations)

Subpart WWWW - Reinforced Plastic Composites Production.

40 CFR 63.5780 through 40 CFR 63.5935

(reinforced or nonreinforced plastic composites or plastic molding compounds using thermostat resins and gel coats that contain styrene)

Subpart XXXX - Rubber Tire Manufacturing.

40 CFR 63.5980 through 40 CFR 63.6015

(production of rubber tires and components including rubber compounds, sidewalls, tread, tire beads, tire cord and liners)

Subpart YYYY - Stationary Combustion Turbines.

40 CFR 63.6080 through 40 CFR 63.6175

(simple cycle, regenerative/recuperative cycle, cogeneration cycle, and combined cycle stationary combustion turbines)

Subpart ZZZZ - Stationary Reciprocating Internal Combustion Engines.

40 CFR 63.6580 through 40 CFR 63.6675.

(any stationary internal combustion engine that uses reciprocating motion to convert heat energy into mechanical work)

(NOTE: Authority to enforce provisions related to affected facilities located at a major source as defined in 40 CFR 63.6675 is being retained by the Commonwealth. Authority to enforce the area source provisions of the above standard is being retained by EPA. The provisions of this subpart as they apply to area sources are not incorporated by reference into these regulations)

Subpart AAAAA - Lime Manufacturing Plants.

40 CFR 63.7080 through 40 CFR 63.7143.

(manufacture of lime product, including calcium oxide, calcium oxide with magnesium oxide, or dead burned dolomite, by calcination of limestone, dolomite, shells or other calcareous substances)

Subpart BBBBB - Semiconductor Manufacturing.

40 CFR 63.7180 through 40 CFR 63.7195

(semiconductor manufacturing process units used to manufacture p-type and n-type semiconductors and active solid-state devices from a wafer substrate)

Subpart CCCCC - Coke Ovens: Pushing, Quenching, and Battery Stacks.

40 CFR 63.7280 through 40 CFR 63.7352

(pushing, soaking, quenching, and battery stacks at coke oven batteries)

Subpart DDDDD - Industrial, Commercial, and Institutional Boilers and Process Heaters.

40 CFR 63.7480 through 40 CFR 63.7575

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart EEEEE - Iron and Steel Foundries.

40 CFR 63.7680 through 40 CFR 63.7765

(metal melting furnaces, scrap preheaters, pouring areas, pouring stations, automated conveyor and pallet cooling lines, automated shakeout lines, and mold and core making lines)

Subpart FFFFF - Integrated Iron and Steel Manufacturing.

40 CFR 63.7780 through 40 CFR 63.7852

(each sinter plant, blast furnace, and basic oxygen process furnace at an integrated iron and steel manufacturing facility)

Subpart GGGGG - Site Remediation.

40 CFR 63.7880 through 40 CFR 63.7957

(activities or processes used to remove, destroy, degrade, transform, immobilize, or otherwise manage remediation material)

Subpart HHHHH - Miscellaneous Coating Manufacturing.

40 CFR 63.7980 through 40 CFR 63.8105

(process vessels; storage tanks for feedstocks and products; pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, and instrumentation systems; wastewater tanks and transfer racks)

Subpart IIIII - Mercury Cell Chlor-Alkali Plants.

40 CFR 63.8180 through 40 CFR 63.8266

(byproduct hydrogen streams, end box ventilation system vents, and fugitive emission sources associated with cell rooms, hydrogen systems, caustic systems, and storage areas for mercury-containing wastes)

Subpart JJJJJ - Brick and Structural Clay Products Manufacturing.

40 CFR 63.8380 through 40 CFR 63.8515

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart KKKKK - Ceramics Manufacturing.

40 CFR 63.8530 through 40 CFR 63.8665

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart LLLLL - Asphalt Processing and Asphalt Roof Manufacturing.

40 CFR 63.8680 through 40 CFR 63.8698

(preparation of asphalt flux at stand-alone asphalt processing facilities, petroleum refineries, and asphalt roofing facilities)

Subpart MMMMM - Flexible Polyurethane Foam Fabrication Operations.

40 CFR 63.8780 through 40 CFR 63.8830

(flexible polyurethane foam fabrication plants using flame lamination or loop slitter adhesives)

Subpart NNNNN - Hydrochloric Acid Production.

40 CFR 63.8980 through 40 CFR 63.9075

(HCl production facilities that produce a liquid HCl product)

Subpart OOOOO - Reserved.

Subpart PPPPP - Engine Test Cells and Stands.

40 CFR Subpart 63.9280 through 40 CFR 63.9375

(any apparatus used for testing uninstalled stationary or uninstalled mobile (motive) engines)

Subpart QQQQQ - Friction Materials Manufacturing Facilities.

40 CFR 63.9480 through 40 CFR 63.9579

(friction materials manufacturing facilities that use a solvent-based process)

Subpart RRRRR - Taconite Iron Ore Processing.

40 CFR 63.9580 through 40 CFR 63.9652

(ore crushing and handling, ore dryer stacks, indurating furnace stacks, finished pellet handling, and fugitive dust)

Subpart SSSSS - Refractory Products Manufacturing.

40 CFR 63.9780 through 40 CFR 63.9824

(manufacture of refractory products, including refractory bricks and shapes, monolithics, kiln furniture, crucibles, and other materials for liming furnaces and other high temperature process units)

Subpart TTTTT - Primary Magnesium Refining.

40 CFR 63.9880 through 40 CFR 63.9942

(spray dryer, magnesium chloride storage bin scrubber, melt/reactor system, and launder off-gas system stacks)

Subpart UUUUU - Reserved.

Subpart VVVVV - Reserved.

Subpart WWWWW - Hospital Ethylene Oxide Sterilizer Area Sources.

40 CFR 63.10382 through 40 CFR 63.10448

(any enclosed vessel that is filled with ethylene oxide gas or an ethylene oxide/inert gas mixture for the purpose of sterilization)

Subpart XXXXX - Reserved.

Subpart YYYYY - Electric Arc Furnace Steelmaking Facility Area Sources.

40 CFR 63.10680 through 40 CFR 63.10692

(a steel plant that produces carbon, alloy, or specialty steels using an electric arc furnace)

Subpart ZZZZZ - Iron and Steel Foundries Area Sources.

40 CFR 63.10880 through 40 CFR 63.10906

(a facility that melts scrap, ingot, and/or other forms of iron and/or steel and pours the resulting molten metal into molds to produce final or near final shape products for introduction into commerce)

Subpart AAAAAA - Reserved.

Subpart BBBBBB - Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities, Area Sources.

40 CFR 63.11080 through 40 CFR 63.11100

(gasoline storage tanks, gasoline loading racks, vapor collection-equipped gasoline cargo tanks, and equipment components in vapor or liquid gasoline service)

Subpart CCCCCC - Gasoline Dispensing Facilities, Area Sources.

40 CFR 63.11110 through 40 CFR 63.11132

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart DDDDDD - Polyvinyl Chloride and Copolymers Production Area Sources.

40 CFR 63.11140 through 40 CFR 63.11145

(plants that produce polyvinyl chloride or copolymers)

Subpart EEEEEE - Primary Copper Smelting Area Sources.

40 CFR 63.11146 through 40 CFR 63.11152

(any installation or any intermediate process engaged in the production of copper from copper sulfide ore concentrates through the use of pyrometallurgical techniques)

Subpart FFFFFF - Secondary Copper Smelting Area Sources.

40 CFR 63.11153 through 40 CFR 63.11159

(a facility that processes copper scrap in a blast furnace and converter or that uses another pyrometallurgical purification process to produce anode copper from copper scrap, including low-grade copper scrap)

Subpart GGGGGG - Primary Nonferrous Metals Area Sources--Zinc, Cadmium, and Beryllium.

40 CFR 63.11160 through 40 CFR 63.11168

(cadmium melting furnaces used to melt cadmium or produce cadmium oxide from the cadmium recovered in the zinc production; primary beryllium production facilities engaged in the chemical processing of beryllium ore to produce beryllium metal, alloy, or oxide, or performing any of the intermediate steps in these processes; and primary zinc production facilities engaged in the production, or any intermediate process in the production, of zinc or zinc oxide from zinc sulfide ore concentrates through the use of pyrometallurgical techniques)

Subpart HHHHHH - Paint Stripping and Miscellaneous Surface Coating Operations Area Sources.

40 CFR 63.11169 through 40 CFR 63.11180

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart IIIIII - Reserved.

Subpart JJJJJJ - Reserved.

Subpart KKKKKK - Reserved.

Subpart LLLLLL - Acrylic and Modacrylic Fibers Production Area Sources.

40 CFR 63.11393 through 40 CFR 63.11399

(production of either of the following synthetic fibers composed of acrylonitrile units: acrylic fiber or modacrylic fiber)

Subpart MMMMMM - Carbon Black Production Area Sources.

40 CFR 63.11400 through 40 CFR 63.11406

(carbon black production process units including all waste management units, maintenance wastewater, and equipment components that contain or contact HAP that are associated with the carbon black production process unit)

Subpart NNNNNN - Chemical Manufacturing Area Sources: Chromium Compounds.

40 CFR 63.11407 through 40 CFR 63.11413

(any process that uses chromite ore as the basic feedstock to manufacture chromium compounds, primarily sodium dichromate, chromic acid, and chromic oxide)

Subpart OOOOOO - Flexible Polyurethane Foam Production and Fabrication Area Sources.

40 CFR 63.11414 through 40 CFR 63.11420

(a facility where pieces of flexible polyurethane foam are cut, bonded, and/or laminated together or to other substrates)

Subpart PPPPPP - Lead Acid Battery Manufacturing Area Sources.

40 CFR 63.11421 through 40 CFR 63.11427

(grid casting facilities, paste mixing facilities, three-process operation facilities, lead oxide manufacturing facilities, lead reclamation facilities, and any other lead-emitting operation that is associated with the lead acid battery manufacturing plant)

Subpart QQQQQQ - Wood Preserving Area Sources.

40 CFR 63.11428 through 40 CFR 63.11434

(pressure or thermal impregnation of chemicals into wood to provide effective long-term resistance to attack by fungi, bacteria, insects, and marine borers)

Subpart RRRRRR - Clay Ceramics Manufacturing Area Sources.

40 CFR 63.11435 through 40 CFR 63.11447

(manufacture of pressed tile, sanitaryware, dinnerware, or pottery with an atomized glaze spray booth or kiln that fires glazed ceramic ware)

Subpart SSSSSS - Glass Manufacturing Area Sources.

40 CFR 63.11448 through 40 CFR 63.11461

(manufacture of flat glass, glass containers, or pressed and blown glass by melting a mixture of raw materials to produce molten glass and form the molten glass into sheets, containers, or other shapes)

Subpart TTTTTT - Secondary Nonferrous Metals Processing Area Sources.

40 CFR 63.11462 through 40 CFR 63.11474

(all crushing and screening operations at a secondary zinc processing facility and all furnace melting operations located at any secondary nonferrous metals processing facility)

Subpart UUUUUU - Reserved.

Subpart VVVVVV - Reserved Chemical Manufacturing Area Sources.

40 CFR 63.11494 through 40 CFR 11503

(each chemical manufacturing process unit that uses as feedstocks, generates as byproducts, or produces as products any of the following: 1,3-butadiene; 1,3-dichloropropene; acetaldehyde; chloroform; ethylene dichloride; methylene chloride; hexachlorobenzene; hydrazine; quinoline; or compounds of arsenic, cadmium, chromium, lead, manganese, or nickel)

Subpart WWWWWW - Plating and Polishing Operations, Area Sources.

40 CFR 63.11504 through 40 CFR 63.11513

(new and existing tanks, thermal spraying equipment, and mechanical polishing equipment used in non-chromium electroplating, electroless or non-electrolytic plating, non-electrolytic metal coating, dry mechanical polishing, electroforming, and electropolishing)

Subpart XXXXXX - Nine Metal Fabrication and Finishing Source Categories, Area Sources.

40 CFR 63.11514 through 40 CFR 63.11523

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart YYYYYY - Ferroalloys Production Facilities, Area Sources.

40 CFR 63.11524 through 40 CFR 63.11543

(manufacture of silicon metal, ferrosilicon, ferrotitanium using the aluminum reduction process, ferrovanadium, ferromolybdenum, calcium silicon, silicomanganese zirconium, ferrochrome silicon, silvery iron, high-carbon ferrochrome, charge chrome, standard ferromanganese, silicomanganese, ferromanganese silicon, calcium carbide or other ferroalloy products using electrometallurgical operations including electric arc furnaces or other reaction vessels)

Subpart ZZZZZZ - Aluminum, Copper, and Other Nonferrous Foundries, Area Sources.

40 CFR 63.11544 through 40 CFR 63.11558

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart AAAAAAA - Asphalt Processing and Asphalt Roofing Manufacturing Area Sources.

40 CFR 63.11559 through 40 CFR 63.11567

(asphalt processing operations that prepare asphalt flux at standalone asphalt processing facilities, petroleum refineries, and asphalt roofing facilities that include one or more asphalt flux blowing stills; and asphalt roofing manufacturing operations that manufacture asphalt roofing products through a series of sequential process steps depending upon whether the type of substrate used is organic or inorganic)

Subpart BBBBBBB - Chemical Preparations Industry Area Sources.

40 CFR 63.11579 through 40 CFR 63.11588

(any facility-wide collection of chemical preparation operations, including the collection of mixing, blending, milling, and extruding equipment used to manufacture chemical preparations that contain metal compounds for chromium, lead, manganese, and nickel)

Subpart CCCCCCC - Paints and Allied Products Manufacturing Area Sources.

40 CFR 63.11599 through 40 CFR 63.11638

(paints and allied products manufacturing processes, including, weighing, blending, mixing, grinding, tinting, dilution or other formulation, as well as cleaning operations, material storage and transfer, and piping)

Subpart DDDDDDD - Prepared Feeds Manufacturing Area Sources.

40 CFR 63.11619 through 40 CFR 63.11638

(production of animal feed from the point in the process where a material containing chromium or manganese is added, to the point where the finished product leaves the facility, including areas where materials containing chromium and manganese are stored, areas where materials containing chromium and manganese are temporarily stored prior to addition to the feed at the mixer, mixing and grinding processes, pelleting and pellet cooling processes, packing and bagging processes, crumblers and screens, bulk loading operations, and all conveyors and other equipment that transfer feed materials)

Appendix A - Test Methods.

Appendix B - Sources Defined for Early Reduction Provisions.

Appendix C - Determination of the Fraction Biodegraded (F_bio) in a Biological Treatment Unit.

Appendix D - Alternative Validation Procedure for EPA Waste and Wastewater Methods.

Title of Regulation: 9VAC5-80. Permits for Stationary Sources (Rev. L07) (amending 9VAC5-80-60, 9VAC5-80-1615, 9VAC5-80-1695, 9VAC5-80-2010, 9VAC5-80-2140).

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

Effective Date: March 2, 2011.

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:

The amendments revise the definitions of "major stationary source" and "major source" and the lists of exempted facilities to exclude chemical processing plants that are ethanol production facilities that produce ethanol by natural fermentation. The amendments are necessary to meet the requirements of the federal Clean Air Act.

9VAC5-80-60. Definitions.

A. For the purpose of Regulations for the Control and Abatement of Air Pollution and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Affected source" means a source that includes one or more affected units.

"Affected states" means all states (i) whose air quality may be affected by the permitted source and that are contiguous to Virginia or (ii) that are within 50 miles of the permitted source.

"Affected unit" means a unit that is subject to any acid rain emissions reduction requirement or acid rain emissions limitation under 40 CFR Part 72, 73, 75, 76, 77 or 78.

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

a. Applicable emission standards.

b. The emission limitation specified as a state or federally enforceable permit condition, including those with a future compliance date.

c. Any other applicable emission limitation, including those with a future compliance date.

"Applicable federal requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future effective compliance dates):

a. Any standard or other requirement provided for in the implementation plan, including any source-specific provisions such as consent agreements or orders.

b. Any term or condition of any preconstruction permit issued pursuant to the new source review program or of any operating permit issued pursuant to the state operating permit program, except for terms or conditions derived from applicable state requirements.

c. Any standard or other requirement prescribed under the Regulations for the Control and Abatement of Air Pollution, particularly the provisions of 9VAC5 Chapter 40 (9VAC5-40-10 et seq.), 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) or 9VAC5 Chapter 60 (9VAC5-60-10 et seq.) 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources), adopted pursuant to requirements of the federal Clean Air Act or under § 111, 112 or 129 of the federal Clean Air Act.

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

e. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act or the Regulations for the Control and Abatement of Air Pollution.

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

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

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

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

j. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1700 et seq.) of this part.

"Applicable requirement" means any applicable federal requirement or any applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-300.

"Applicable state requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved through rulemaking at the time of permit issuance but have future effective compliance dates):

a. Any standard or other requirement prescribed by any regulation of the board that is not included in the definition of applicable federal requirement.

b. Any regulatory provision or definition directly associated with or related to any of the specific state requirements listed in this definition.

"Area source" means any stationary source that is not a major source. For purposes of this article, the phrase "area source" shall not include motor vehicles or nonroad vehicles.

"Complete application" means an application that contains all the information required pursuant to 9VAC5-80-80 and 9VAC5-80-90 sufficient to determine all applicable requirements and to evaluate the source and its application. Designating an application complete does not preclude the board from requesting or accepting additional information.

"Designated representative" means a responsible natural person authorized by the owners and operators of an affected source and of all affected units at the source, as evidenced by a certificate of representation submitted in accordance with subpart B of 40 CFR Part 72, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the acid rain program. Whenever the term "responsible official" is used in this regulation, it shall be deemed to refer to the designated representative with regard to all matters under the acid rain program. Whenever the term "designated representative" is used in this regulation, the term shall be construed to include the alternate designated representative.

"Draft permit" means the version of a permit for which the board offers public participation under 9VAC5-80-270 or affected state review under 9VAC5-80-290.

"Emissions allowable under the permit" means a federally and state enforceable or state-only enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or a federally and state enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

"Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit any regulated air pollutant. This term is not meant to alter or affect the definition of the term "unit" in 40 CFR Part 72.

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

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

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

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

4. Limitations and conditions that are part of an approved implementation plan.

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review program permit issued under regulations approved by the EPA into the implementation plan.

6. Limitations and conditions that are part of a state operating permit issued under regulations approved by the EPA into the implementation plan as meeting the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

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

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

"Final permit" means the version of a permit issued by the board under this article that has completed all review procedures required by 9VAC5-80-270 and 9VAC5-80-290.

"Fugitive emissions" are those emissions which cannot reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"General permit" means a permit issued under this article that meets the requirements of 9VAC5-80-120.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved in Subpart VV of 40 CFR Part 52 by the administrator under § 110 of the federal Clean Air Act, or promulgated under § 110(c) of the federal Clean Air Act, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the federal Clean Air Act and which implements the relevant requirements of the federal Clean Air Act.

"Insignificant activity" means any emission unit listed in 9VAC5-80-720 A, any emissions unit that meets the emissions criteria described in 9VAC5-80-720 B, or any emissions unit that meets the size or production rate criteria in 9VAC5-80-720 C.

"Major source" means:

a. For hazardous air pollutants other than radionuclides, any stationary source that emits or has the potential to emit, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources.

b. For air pollutants other than hazardous air pollutants, any stationary source that directly emits or has the potential to emit 100 tons per year or more of any air pollutant (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source:

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

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

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

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

(10) Petroleum refineries.

(11) Lime plants.

(12) Phosphate rock processing plants.

(13) Coke oven batteries.

(14) Sulfur recovery plants.

(15) Carbon black plants (furnace process).

(16) Primary lead smelters.

(17) Fuel conversion plant.

(18) Sintering plants.

(19) Secondary metal production plants.

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

(23) Taconite ore processing plants.

(24) Glass fiber processing plants.

(25) Charcoal production plants.

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

(27) Any other stationary source category regulated under § 111 or § 112 of the federal Clean Air Act for which the administrator has made an affirmative determination under § 302(j) of the federal Clean Air Act.

c. For ozone nonattainment areas, any stationary source with the potential to emit 100 tons per year or more of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or "moderate," 50 tons per year or more in areas classified as "serious," 25 tons per year or more in areas classified as "severe," and 10 tons per year or more in areas classified as "extreme"; except that the references in this definition to nitrogen oxides shall not apply with respect to any source for which the administrator has made a finding that requirements under § 182(f) of the federal Clean Air Act (NO_x requirements for ozone nonattainment areas) do not apply.

d. For attainment areas in ozone transport regions, any stationary source with the potential to emit 50 tons per year or more of volatile organic compounds.

"Malfunction" means any sudden and unavoidable failure of air pollution control equipment or process equipment or of a process to operate in a normal or usual manner that (i) arises from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, (ii) causes an exceedance of a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the failure and (iii) requires immediate corrective action to restore normal operation. Failures that are caused entirely or in part by improperly designed equipment, lack of or poor preventative maintenance, careless or improper operation, operator error, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with 9VAC5-80-10 or Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1700 et seq.) or Article 9 (9VAC5-80-2000 et seq.) of this part, promulgated to implement the requirements of §§ 110(a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas), 173 (relating to permits in nonattainment areas), and 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"Permit," unless the context suggests otherwise, means any permit or group of permits covering a source subject to this article that is issued, renewed, amended, or revised pursuant to this article.

"Permit modification" means a revision to a permit issued under this article that meets the requirements of 9VAC5-80-210 on minor permit modifications, 9VAC5-80-220 on group processing of minor permit modifications, or 9VAC5-80-230 on significant modifications.

"Permit revision" means any permit modification that meets the requirements of 9VAC5-80-210, 9VAC5-80-220 or 9VAC5-80-230 or any administrative permit amendment that meets the requirements of 9VAC5-80-200.

"Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is state and federally enforceable.

"Proposed permit" means the version of a permit that the board proposes to issue and forwards to the administrator for review in compliance with 9VAC5-80-290.

"Regulated air pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound.

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

c. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

d. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act concerning stratospheric ozone protection.

e. Any pollutant subject to a standard promulgated under or other requirements established under § 112 of the federal Clean Air Act concerning hazardous air pollutants and any pollutant regulated under Subpart C of 40 CFR Part 68.

f. Any pollutant subject to an applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-300.

"Renewal" means the process by which a permit is reissued at the end of its term.

"Research and development facility" means all the following as applied to any stationary source:

a. The primary purpose of the source is the conduct of either (i) research and development into new products or processes or into new uses for existing products or processes or into refining and improving existing products or processes or (ii) basic research to provide for education or the general advancement of technology or knowledge.

b. The source is operated under the close supervision of technically trained personnel.

c. The source is not engaged in the manufacture of products in any manner inconsistent with subdivision a (i) or (ii) of this definition.

An analytical laboratory that primarily supports a research and development facility is considered to be part of that facility.

"Responsible official" means one of the following:

a. For a business entity, such as a corporation, association or cooperative:

(1) The president, secretary, treasurer, or vice-president of the business entity in charge of a principal business function, or any other person who performs similar policy or decision making functions for the business entity, or

(2) A duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) the authority to sign documents has been assigned or delegated to such representative in accordance with procedures of the business entity and the delegation of authority is approved in advance by the board;

b. For a partnership or sole proprietorship: a general partner or the proprietor, respectively; or

c. For a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of EPA).

d. For affected sources:

(1) The designated representative insofar as actions, standards, requirements, or prohibitions under Title IV of the federal Clean Air Act or the regulations promulgated thereunder are concerned; and

(2) The designated representative or any other person specified in this definition for any other purposes under this article.

"State enforceable" means all limitations and conditions which are enforceable by the board, including those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter

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

"Stationary source" means any building, structure, facility or installation which emits or may emit any regulated air pollutant. A stationary source shall include all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual (see 9VAC5-20-21). At the request of the applicant, any research and development facility may be considered a separate stationary source from the manufacturing or other facility with which it is co-located.

"Title I modification" means any modification under Parts C and D of Title I or §§ 111(a)(4), 112(a)(5), or § 112(g) of the federal Clean Air Act; under regulations promulgated by the U.S. Environmental Protection Agency thereunder or in 40 CFR 61.07; or under regulations approved by the U.S. Environmental Protection Agency to meet such requirements.

9VAC5-80-1615. Definitions.

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

B. For the purpose of this article, 9VAC5-80-280 and applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meaning meanings given them in subsection C of this section:

C. Terms defined.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Baseline area":

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

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

(1) Establishes a minor source baseline date; or

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

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

"Baseline concentration"

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

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

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

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

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

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

"Baseline date"

a. "Major source baseline date" means:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. Are permanent;

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

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

d. Are technically accurate and quantifiable;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Major modification"

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

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

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

(1) Routine maintenance, repair and replacement.

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

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

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

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

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

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

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

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

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

(a) The applicable implementation plan; and

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

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

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

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

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

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

"Major stationary source"

a. Means:

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

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

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

(c) Kraft pulp mills.

(d) Portland cement plants.

(e) Primary zinc smelters.

(f) Iron and steel mill plants.

(g) Primary aluminum ore reduction plants.

(h) Primary copper smelters.

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

(j) Hydrofluoric acid plants.

(k) Sulfuric acid plants.

(l) Nitric acid plants.

(m) Petroleum refineries.

(n) Lime plants.

(o) Phosphate rock processing plants.

(p) Coke oven batteries.

(q) Sulfur recovery plants.

(r) Carbon black plants (furnace process).

(s) Primary lead smelters.

(t) Fuel conversion plants.

(u) Sintering plants.

(v) Secondary metal production plants.

(w) Chemical process plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

(z) Taconite ore processing plants.

(aa) Glass fiber processing plants.

(bb) Charcoal production plants.

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

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

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

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

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

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

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

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

(10) Petroleum refineries.

(11) Lime plants.

(12) Phosphate rock processing plants.

(13) Coke oven batteries.

(14) Sulfur recovery plants.

(15) Carbon black plants (furnace process).

(16) Primary lead smelters.

(17) Fuel conversion plants.

(18) Sintering plants.

(19) Secondary metal production plants.

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

(23) Taconite ore processing plants.

(24) Glass fiber processing plants.

(25) Charcoal production plants.

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

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

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

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

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

"Net emissions increase"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"PAL permit" means the state operating permit issued by the board that establishes a PAL for a major stationary source.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Regulated NSR pollutant" means:

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

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

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

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

"Repowering" means:

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

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

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

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

"Significant" means:

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

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

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

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

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

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

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

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

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

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

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

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

9VAC5-80-1695. Exemptions.

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

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

a. Coal cleaning plants (with thermal dryers).

b. Kraft pulp mills.

c. Portland cement plants.

d. Primary zinc smelters.

e. Iron and steel mills.

f. Primary aluminum ore reduction plants.

g. Primary copper smelters.

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

i. Hydrofluoric acid plants.

j. Sulfuric acid plants.

k. Nitric acid plants.

l. Petroleum refineries.

m. Lime plants.

n. Phosphate rock processing plants.

o. Coke oven batteries.

p. Sulfur recovery plants.

q. Carbon black plants (furnace process).

r. Primary lead smelters.

s. Fuel conversion plants.

t. Sintering plants.

u. Secondary metal production plants.

v. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

y. Taconite ore processing plants.

z. Glass fiber processing plants.

aa. Charcoal production plants.

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

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

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

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

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

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

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

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

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

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

2. Would be temporary.

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

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

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

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

Nitrogen dioxide -- 14 μg/m³, annual average

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

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

Ozone*

Lead -- 0.1 μg/m³, 3-month average

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

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

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

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

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

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

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

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

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

9VAC5-80-2010. Definitions.

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

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

C. Terms defined.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. Are permanent;

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

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

d. Are technically accurate and quantifiable;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Major modification"

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

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

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

(1) Routine maintenance, repair and replacement.

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

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

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

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

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

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

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

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

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

(a) The applicable implementation plan; and

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

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

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

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

"Major stationary source"

a. Means:

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

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

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

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

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

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

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

(9) Hydrofluoric acid plants.

(10) Sulfuric acid plants.

(11) Nitric acid plants.

(12) Petroleum refineries.

(13) Lime plants.

(14) Phosphate rock processing plants.

(15) Coke oven batteries.

(16) Sulfur recovery plants.

(17) Carbon black plants (furnace process).

(18) Primary lead smelters.

(19) Fuel conversion plants.

(20) Sintering plants.

(21) Secondary metal production plants.

(22) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

(25) Taconite ore processing plants.

(26) Glass fiber manufacturing plants.

(27) Charcoal production plants.

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

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

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

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

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

"Net emissions increase"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"PAL permit" means the state operating permit issued by the board that establishes a PAL for a major stationary source.

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

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

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

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

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

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

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

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

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

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

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

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

"Regulated NSR pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound;

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

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

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

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

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

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

b. Other nonattainment areas.

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

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

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

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

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

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

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

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

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

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

9VAC5-80-2140. Exemptions.

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

1. Coal cleaning plants (with thermal dryers);

2. Kraft pulp mills;

3. Portland cement plants;

4. Primary zinc smelters;

5. Iron and steel mills;

6. Primary aluminum ore reduction plants;

7. Primary copper smelters;

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

9. Hydrofluoric acid plants;

10. Sulfuric acid plants;

11. Nitric acid plants;

12. Petroleum refineries;

13. Lime plants;

14. Phosphate rock processing plants;

15. Coke oven batteries;

16. Sulfur recovery plants;

17. Carbon black plants (furnace process);

18. Primary lead smelters;

19. Fuel conversion plants;

20. Sintering plants;

21. Secondary metal production plants;

22. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140);

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

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

25. Taconite ore processing plants;

26. Glass fiber processing plants;

27. Charcoal production plants;

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

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

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

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

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

Title of Regulation: 9VAC5-151. Regulation for Transportation Conformity (Rev. E10) (amending 9VAC5-151-40, 9VAC5-151-70).

Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.

Effective Date: March 2, 2011.

Agency Contact: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.

Summary:

This regulation requires that transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. In particular, 9VAC5-151-70 outlines specifically how the various government agencies, federal, state and local, will interact and consult with each other and the public in developing transportation plans and projects.

The U.S. Environmental Protection Agency (EPA) promulgated amendments to the federal transportation regulation on March 24, 2010 (75 FR 14260). Under 40 CFR 51.390, Virginia is required to submit to the EPA a revision to the SIP that establishes conformity criteria and procedures consistent with the transportation conformity regulation promulgated by EPA at 40 CFR Part 93. In order to implement the federal transportation conformity requirements, the Virginia regulation must reflect the recent revisions made to the federal regulations. This regulation is amended to include the 2010 CFR revisions.

Part III
Criteria and Procedures for Making Conformity Determinations

9VAC5-151-40. General.

The Environmental Protection Agency (EPA) regulations promulgated at 40 CFR Part 93, Subpart A (Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws) and designated in 9VAC5-151-50 are incorporated by reference into this chapter as amended by the word or phrase substitutions given in 9VAC5-151-60. The 40 CFR section numbers appearing in 9VAC5-151-50 identify the specific provisions incorporated by reference. The specific version of the provisions incorporated by reference shall be that contained in the CFR (2008) (2010) in effect July 1, 2008 2010.

9VAC5-151-70. Consultation.

A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the procedures prescribed in this section for interagency consultation, conflict resolution and public consultation with each other and with local or regional offices of EPA, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementation plan, transportation plans, TIPs, and associated conformity determinations required by this chapter.

B. Until EPA grants approval of this chapter, the MPOs, and VDOT and VDRPT, prior to making conformity determinations, shall provide reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in subdivision D 1 of this section.

C. The provisions of this subsection shall be followed with regard to general factors associated with interagency consultation.

1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA shall undertake an interagency consultation process, in accordance with subdivisions 1 and 3 of this subsection and subsection D of this section, with the LPOs, DEQ and EPA on the development of implementation plans, transportation plans, TIPs, any revisions to the preceding documents, and associated conformity determinations.

a. MPOs, or their designee, shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the transportation plan, the TIP, and any amendments or revisions thereto. In the case of nonmetropolitan areas, VDOT shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the statewide transportation plan, the statewide TIP, and any amendments or revisions thereto. The MPOs shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to any determinations of conformity under this chapter for which the MPO is responsible.

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare summaries of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on major activities (such as the development of a transportation plan, the development of a TIP, or any determination of conformity on transportation plans or TIPs) shall include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mutually determined by the affected agencies. In addition, technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the document to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or responsibility, and provide technical assistance to the lead agency or to the consultation process when requested.

2. Representatives of the LPOs, DEQ, and EPA shall undertake an interagency consultation process, in accordance with this subdivision and subdivision 3 of this subsection, with MPOs, VDOT, VDRPT, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementation plan, and any revisions to the preceding documents.

a. The DEQ, in conjunction with the LPOs, shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of control strategy implementation plan revisions, the credits associated with the list of TCMs in the applicable implementation plan, and any amendments or revisions thereto.

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare minutes of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on the development of any control strategy implementation plan revision shall include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mutually determined by the affected agencies. In addition, technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the document to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or responsibility, and provide technical assistance to the lead agency or to the consultation process when requested.

3. The specific roles and responsibilities of various participants in the interagency consultation process shall be as follows:

a. The MPOs shall be responsible for the following:

(1) Developing metropolitan transportation plans and TIPs in accordance with 23 CFR Part 450 and 49 CFR Part 613 and the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (Public Law No. 109-59).

(2) Adopting conformity determinations in conjunction with the adoption of transportation plans and TIPs and any revisions to the documents.

(3) In cooperation with VDOT, with assistance from VDRPT:

(a) Developing conformity assessments and associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and related socio-economic data and planning assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis for implementation plan tracking and conformity of transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the development of emissions budgets.

(f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs needed for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the process.

(h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and the transportation planning process to agencies in interagency consultation.

(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process.

b. The VDOT, with assistance from the VDRPT, shall be responsible for the following:

(1) Developing statewide transportation plans and statewide TIPs.

(2) Providing demand forecasting and on-road mobile source emission inventories.

(3) Circulating draft and final project environmental documents to other agencies.

(4) Convening air quality technical review meetings on specific projects as needed or when requested by other agencies.

(5) In cooperation with the MPOs:

(a) Developing conformity assessments and associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and related planning assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis for implementation plan tracking and conformity of transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the development of emissions budgets.

(f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs need for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the process.

(h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and the transportation planning process to agencies in interagency consultation.

(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process.

c. The LPOs shall be responsible for the following:

(1) Developing emissions inventories and budgets.

(2) Developing control strategy implementation plan revisions and maintenance plans.

(3) Providing a staff liaison to the MPOs for conformity and to be responsive to MPO requests for information and technical guidance.

(4) Involving the MPOs, VDOT AND VDRPT continuously in the process.

d. The DEQ shall be responsible for the following:

(1) Developing emissions inventories and budgets.

(2) Tracking attainment of air quality standards, and emission factor model updates.

(3) Gaining final approval at state level for control strategy implementation plan revisions and maintenance plans.

(4) Providing a staff liaison to the LPOs for conformity and to be responsive to LPO requests for information and technical guidance.

(5) Involving the LPOs continuously in the process.

e. The FHWA and FTA shall be responsible for the following:

(1) Assuring timely action on final findings of conformity, after consultation with other agencies as provided in this section.

(2) Providing guidance on conformity and the transportation planning process to agencies in interagency consultation.

f. The EPA shall be responsible for the following:

(1) Reviewing and approving updated motor vehicle emissions factors.

(2) Providing guidance on conformity criteria and procedures to agencies in interagency consultation.

(3) Assuring timely action on conformity analysis and findings and implementation plan revisions.

4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into agreements to set forth specific consultation procedures in more detail that are not in conflict with this section.

D. The provisions of this subsection shall be followed with regard to specific processes associated with interagency consultation.

1. An interagency consultation process involving the MPOs, LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the following:

a. Evaluating and choosing each model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emission analyses, including vehicle miles traveled (VMT) forecasting, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

b. Determining which transportation projects should be considered "regionally significant" for the purpose of regional emission analysis (in addition to those functionally classified as principal arterial or higher; or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

c. Evaluating whether projects otherwise exempted from meeting the requirements of 40 CFR 93.126 and 40 CFR 93.127 should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

d. Making a determination, as required by 40 CFR 93.113(c)(1), whether past obstacles to implementation of TCMs that are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether state and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs, to be initiated by VDOT as lead agency, in consultation with the MPOs and VDRPT, and conducted in accordance with subdivisions C 1 and 3 of this section. This consultation process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures.

e. Notifying all parties to the consultation process of transportation plan or TIP amendments that merely add or delete exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127, to be initiated by VDOT in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

f. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(l)(2)(iii) 40 CFR 93.109(n)(2)(iii), to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

g. Determining what forecast of vehicle miles traveled (VMT) to use in establishing or tracking emissions budgets, developing transportation plans, TIPs, or control strategy implementation plan revisions, or making conformity determinations, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

2. An interagency consultation process in accordance with subsection C of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT shall be undertaken for the following:

a. Evaluating events that may trigger new conformity determinations in addition to those triggering events established by 40 CFR 93.104, to be initiated by VDOT, in consultation with the MPOs and DEQ, and conducted in accordance with subdivisions C 1 and 3 of this section.

b. Consulting on emissions analysis for transportation activities that cross the borders of MPOs or nonattainment areas, to be initiated by VDOT in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

3. Where the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultation process in accordance with subdivisions C 1 and 3 of this section involving the MPOs and VDOT shall be undertaken for cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

4. To assure that plans for construction of regionally significant projects that are not FHWA or FTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including all those by recipients of funds designated under Title 23 USC or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed, an interagency consultation process shall be undertaken, to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT, VDRPT, and recipients of funds designated under Title 23 USC or the Federal Transit Act.

5. An interagency consultation process in accordance with subsections C 1 and 3 of this section involving the MPOs and other recipients of funds designated under Title 23 USC or the Federal Transit Act shall be undertaken for developing assumptions regarding the location and design concept and scope of projects that are disclosed to the MPO as required by subdivision 4 of this subsection but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122, to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.

6. An interagency consultation process in accordance with subdivisions C 1 and 3 of this section shall be undertaken for the design, schedule, and funding of research and data collection efforts and model developments in regional transportation (such as household or travel transportation surveys) to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.

E. The provisions of this subsection shall be followed with regard to conflict resolution associated with interagency consultation.

1. Unresolved conflicts among state agencies, or between state agencies and the MPO(s), or among MPO member jurisdictions, shall be identified by an MPO or agency in writing to the other MPO, DEQ, VDOT, or VDRPT, with copies to FHWA, FTA and EPA. The MPO's or agency's written notice shall:

a. Explain the nature of the conflict;

b. Review options for resolving the conflict;

c. Describe the MPO's or agency's proposal to resolve the conflict;

d. Explain the consequences of not reaching a resolution; and

e. Request that comments on the matter be received within two weeks.

2. If the above action does not result in a resolution to the conflict, either of the following shall apply:

a. If the conflict is between the MPOs or between the MPO(s) and VDOT or VDRPT or both, then the parties shall follow the coordination procedures of 23 CFR 450.210.

b. If the conflict is between the MPO(s) or VDOT or VDRPT and the DEQ and the conflict can not be resolved by the affected agency heads, then the DEQ Director may elevate the conflict to the Governor in accordance with the procedures of subdivision 3 of this section. If the DEQ Director does not appeal to the Governor within 14 days as provided in subdivision 3 a of this subsection, the MPO or VDOT or VDRPT may proceed with its final conformity determination.

3. Appeals to the Governor by the DEQ Director under the provisions of subdivision 2 b of this subsection shall be in accordance with the following procedures:

a. The DEQ Director has 14 calendar days to appeal to the Governor after the MPO(s) or VDOT or VDRPT has notified the DEQ Director of the agency's or MPO's resolution of DEQ's comments. The notification to the DEQ Director shall be in writing and shall be hand-delivered. The 14-day clock shall commence when VDOT or VDRPT or the MPO has confirmed receipt by the DEQ Director of the agency's or MPO's resolution of the DEQ's comments.

b. The appeal to the Governor shall consist of the following: the conformity determination and any supporting documentation; DEQ's comments on the determination; the MPO(s) or VDOT or VDRPT resolution of DEQ's comments; and DEQ's appeal document.

c. The DEQ shall provide a complete appeal package to the MPO, VDOT and VDRPT within 24 hours of the time the appeal is filed with the Governor's Office.

d. If the Governor does not concur with the conformity determination, he may direct revision of the applicable implementation plan, revision of the planned program of projects, revision of the conformity analysis or any combination of the preceding.

e. If the Governor concurs with the conformity determination made by the MPO and VDOT, the MPO and VDOT may proceed with the final conformity determination.

f. The Governor may delegate his role in this process, but not to the agency head or staff of DEQ, VDOT or VDRPT or the Commonwealth Board of Transportation.

4. Nothing in this section shall prevent the state agencies and MPOs from making efforts upon their own initiative to obtain mutual conflict resolution through conference or other appropriate means.

F. The provisions of this subsection shall be followed with regard to public consultation.

1. The MPOs shall establish a proactive involvement process that provides reasonable opportunity for review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the MPO at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of 23 CFR 450.316(a).

2. The MPOs shall specifically address in writing public comments regarding plans for a regionally significant project, not receiving FHWA or FTA funding or approval, and how the project is properly reflected in the emission analysis supporting a proposed conformity finding for a transportation plan or TIP.

3. The MPOs shall also provide an opportunity for public involvement in conformity determinations for projects where otherwise required by law.

Title of Regulation: 9VAC5-160. Regulation for General Conformity (Rev. F10) (amending 9VAC5-160-20, 9VAC5-160-30, 9VAC5-160-110 through 9VAC5-160-190; adding 9VAC5-160-181 through 9VAC5-160-185; repealing 9VAC5-160-200).

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

Effective Date: March 2, 2011.

Agency Contact: Karen G. Sabasteanski, Policy Analyst, Department of Environmental Quality, P.O. Box 10009, Richmond, VA 23240, telephone (804) 698-4426, FAX (804) 698-4510, TTY (804) 698-4021, or email karen.sabasteanski@deq.virginia.gov.

Summary:

The Virginia general conformity regulation is revised to meet new federal requirements. The federal Clean Air Act requires that federal agencies must make determinations that general federal actions, such as prescribed burning, military base closings, and real estate developments, conform to Virginia's state implementation plan (SIP) for air quality. On July 17, 2006 (71 FR 40420), the U.S. Environmental Protection Agency (EPA) revised its general conformity regulations to add PM_2.5 de minimis emission levels for general conformity applicability. On April 5, 2010 (75 FR 17254), EPA further revised its general conformity requirements to address a number of implementation issues and improve the program's ability to facilitate federal agency compliance with conforming their activities to the SIPs, thereby preventing violations of the national ambient air quality standards. EPA deleted 40 CFR 51.850 and 40 CFR 51.51.852 through 51.860, since those sections merely repeated the language in 40 CFR 93.150 and 40 CFR 93.152 through 93.160. EPA then included a requirement in 40 CFR 51.851 that the general conformity SIP must meet the requirements in 40 CFR Part 93, subpart B, which were in turn revised to effect the needed program changes.

9VAC5-160-20. Terms defined.

"Administrator" means the Administrator of EPA or an authorized representative.

"Affected federal land manager" means the federal agency or the federal official charged with direct responsibility for management of an area designated as class I under the federal Clean Air Act, and located within 100 kilometers of the proposed federal action.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Applicability analysis" means the process of determining if the federal action shall be supported by a conformity determination.

"Applicable implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved under § 110(k) of the federal Clean Air Act, or a federal implementation plan promulgated under § 110(c) of the federal Clean Air Act, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the federal Clean Air Act and which implements the relevant requirements of the federal Clean Air Act.

"Areawide air quality modeling analysis" means an assessment on a scale that includes the entire nonattainment area or maintenance area which uses using an air quality dispersion model or photochemical grid model to determine the effects of emissions on air quality, for example, an assessment using EPA's community multi-scale air quality (CMAQ) modeling system.

"Board" means the State Air Pollution Control Board or its designated representative.

"Cause or contribute to a new violation" means a federal action that:

1. Causes a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the federal action were not taken; or

2. Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

"Caused by" means, as used in the terms "direct emissions" and "indirect emissions," emissions that would not otherwise occur in the absence of the federal action.

"Confidential business information" or "CBI" means information that has been determined by a federal agency, in accordance with its applicable regulations, to be a trade secret, or commercial or financial information obtained from a person and privileged or confidential and is exempt from required disclosure under the federal Freedom of Information Act (5 USC § 552(b)(4)).

"Conformity determination" means the evaluation (made after an applicability analysis is completed) that a federal action conforms to the applicable implementation plan and meets the requirements of this regulation.

"Conformity evaluation" means the entire process from the applicability analysis through the conformity determination that is used to demonstrate that the federal action conforms to the requirements of this regulation.

"Consultation" means that one party confers with another identified party, provides all information to that party needed for meaningful input, and, prior to taking any action, considers the views of that party and responds to those views in a timely, substantive, written manner prior to any final decision on the action. The views and written response shall be made part of the record of any decision or action.

"Continuing program responsibility" means a federal agency has responsibility for emissions caused by (i) actions it takes itself; or (ii) actions of nonfederal entities that the federal agency, in exercising its normal programs and authorities, approves, funds, licenses, or permits, provided the agency can impose conditions on any portion of the action that could affect the emissions.

"Continuous program to implement" means that the federal agency has started the action identified in the plan and does not stop the actions for more than an 18-month period, unless it can demonstrate that such a stoppage was included in the original plan.

"Control" means the ability to regulate the emissions from the action. The ability to regulate may be demonstrated directly, such as through the use of emission control equipment, or indirectly, such as through the implementation of regulations or conditions on the nature of the activity that may be established in permits or approvals or by the design of the action. An example of control includes the ability of a federal agency to control the level of vehicle emissions by controlling the size of a parking facility and setting requirements for employee trip reductions.

"Criteria pollutant" means any pollutant for which there is established a national ambient air quality standard in 40 CFR Part 50.

"Department" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"Direct emissions" means those emissions of a criteria pollutant or its precursors that are caused or initiated by the federal action and originate in a nonattainment or maintenance area and occur at the same time and place as the action and are reasonably foreseeable.

"Director" means the Director of the Virginia Department of Environmental Quality.

"Emergency" means, in the context of 9VAC5-160-30, a situation where extremely quick action on the part of federal agencies involved is needed and where the timing of the federal activities makes it impractical to meet the requirements of this regulation, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and military mobilizations.

"Emergency" means, in the context of 9VAC5-160-40, a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural or other reasonable use.

"Emissions budgets" are means those portions of the total allowable emissions defined in the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones or attainment or maintenance demonstrations, for any criteria pollutant or its precursors, specifically allocated by the applicable implementation plan to mobile sources, to any stationary source or class of stationary sources, to any federal action or any class of action, to any class of area sources, or to any subcategory of the emissions inventory. The allocation system shall be specific enough to assure meeting the criteria of § 176(c)(1)(B) of the federal Clean Air Act. An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable implementation plan.

"Emissions inventory" means a listing of information on the location, type of source, type and quantity of pollutant emitted as well as other parameters of the emissions.

"Emissions offsets" means, for the purposes of 9VAC5-160-160, emissions reductions which are quantifiable, consistent with the applicable implementation plan attainment and reasonable future progress demonstrations, surplus to reductions required by, and credited to, other applicable implementation plan provisions, enforceable under both state and federal law, and permanent within the timeframe specified by that program. Emissions reductions intended to be achieved as emissions offsets under this regulation shall be monitored and enforced in a manner equivalent to that under the new source review program.

"Emissions that a federal agency has a continuing program responsibility for" means emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that occur due to subsequent activities, unless the activities are required by the federal agency. Where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a nonfederal entity taking subsequent actions, the emissions are covered by the meaning of a continuing program responsibility.

"EPA" means the United States U.S. Environmental Protection Agency.

"Facility" means something that is built, installed, or established to serve a particular purpose; includes, but is not limited to, buildings, installations, public works, businesses, commercial and industrial plants, shops and stores, heating and power plants, apparatus, processes, operations, structures, and equipment of all types.

"Federal action" means any activity engaged in by a federal agency, or any activity that a federal agency supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the Federal Transit Act (49 USC § 5301 et seq.). Where the federal action is a permit, license, or other approval for some aspect of a nonfederal undertaking, the relevant action is the part, portion, or phase that the nonfederal undertaking that requires the federal permit, license, or approval.

"Federal agency" means a department, agency, or instrumentality of the federal government.

"Federal Clean Air Act" means 42 USC § 7401 et seq Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"Increase the frequency or severity of any existing violation of any standard in any area" means to cause a nonattainment area to exceed a standard more often, or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question, if the project were not implemented.

"Indirect emissions" means those emissions of a criteria pollutant or its precursors that:

1. Are caused or initiated by the federal action and originate in the same nonattainment or maintenance area, but may occur later in time, or may be farther removed in distance from the action itself but are still reasonably foreseeable; and at a different time or place as the action;

2. The federal agency can practicably control and will maintain control over due to a continuing program responsibility of the federal agency, including, but not limited to:

a. Traffic on or to, or stimulated or accommodated by, a proposed facility which is related to increases or other changes in the scale or timing of operations of the facility;

b. Emissions related to the activities of employees of contractors or federal employees;

c. Emissions related to employee commutation and similar programs to increase average vehicle occupancy imposed on all employers of a certain size in the locality; and

d. Emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are usual and customary for contracts or leases or within the scope of contractual protection of the interests of the United States That are reasonably foreseeable;

3. That the agency can practically control; and

4. For which the agency has a continuing program responsibility.

For the purposes of this definition, even if a federal licensing, rulemaking, or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a federal agency can practically control any resulting emissions.

"Lead planning organization" means the organization certified by the state as being responsible for the preparation of control strategy implementation plan revisions for nonattainment areas under § 174 of the federal Clean Air Act. The organization includes elected officials of local governments in the affected nonattainment area, and representatives of the department, the Virginia Department of Transportation, the metropolitan planning organizations for the affected area, and other agencies and organizations that have responsibilities for developing, submitting or implementing any of the plan revisions. It is the forum for cooperative air quality planning decision-making.

"Local air quality modeling analysis" means assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals roadways on a federal facility, which that uses an air quality dispersion model (e.g., Industrial Source Complex Model or Emission and Dispersion Model System) to determine the effects of emissions on air quality.

"Maintenance area" means any geographic region of the United States previously an area that was designated as a nonattainment area and subsequently has been redesignated in 40 CFR Part 81 to attainment subject to the requirement to develop a maintenance plan, meeting the provisions of § 107(d)(3)(E) of the federal Clean Air Act and has a maintenance plan approved under § 175A of the federal Clean Air Act.

"Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements of § 175A of the federal Clean Air Act.

"Metropolitan planning organization" means the policy board of an organization designated as being responsible, together with the Commonwealth of Virginia, for conducting the continuing, cooperative, and comprehensive planning process under created as a result of the designation process in 23 USC § 134(d) and 49 USC 1607.

"Milestone" means as defined in §§ 182(g) and 189(c)(1) of the federal Clean Air Act. A milestone consists of an emissions level and the date on which it is required to be achieved.

"Mitigation measure" means any method of reducing emissions of the pollutant or its precursor taken at the location of the federal action and used to reduce the impact of the emissions of that pollutant caused by the action.

"National ambient air quality standards" means those standards established pursuant to § 109 of the federal Clean Air Act.

"NEPA" means the National Environmental Policy Act of 1969 as amended (42 USC § 4321 et seq.)

"New source review (NSR) program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with regulations promulgated to implement the requirements of §§ 110 (a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas) and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 110 (a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations, and (iii) Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources) of the Regulations for the Control and Abatement of Air Pollution.

"Nonattainment area" means any geographic region of the United States which has been designated as nonattainment under § 107 of the federal Clean Air Act for any pollutant for which a national ambient air quality standard exists.

"PM₁₀" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by the applicable reference method or an equivalent method.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Precursors of a criteria pollutant" means:

1. For ozone,

a. Nitrogen oxides, unless an area is exempted from nitrogen oxides requirements under § 182(f) of the federal Clean Air Act, and

b. Volatile organic compounds; and.

2. For PM₁₀, those pollutants described in the PM₁₀ nonattainment area applicable implementation plan as significant contributors to the particulate matter PM₁₀ levels.

3. For PM_2.5, (i) sulfur dioxide in all PM_2.5 nonattainment and maintenance areas, (ii) nitrogen oxides in all PM_2.5 nonattainment and maintenance areas unless both the department and EPA determine that it is not a significant precursor, and (iii) volatile organic compounds and ammonia only in PM_2.5 nonattainment or maintenance areas where either the department or EPA determines that they are significant precursors.

"Reasonably foreseeable emissions" are means projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location of the such emissions is known to the extent adequate to determine the impact of the emissions; and the emissions are quantifiable, as described and documented by the federal agency based on its own information and after reviewing any information presented to the federal agency.

"Regional water or wastewater projects" means construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.

"Regionally significant action" means a federal action for which the direct and indirect emissions of any pollutant represent 10% or more of a nonattainment or maintenance area's emissions inventory for that pollutant.

"Restricted information" means information that is privileged or that is otherwise protected from disclosure pursuant to applicable statutes, executive orders, or regulations. Such information includes, but is not limited to, classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information.

"Source" means any one or combination of the following: buildings, structures, facilities, installations, articles, machines, equipment, landcraft, watercraft, aircraft, or other contrivances which contribute, or may contribute, either directly or indirectly to air pollution. Any activity by any person that contributes, or may contribute, either directly or indirectly to air pollution, including, but not limited to, open burning, generation of fugitive dust or emissions, and cleaning with abrasives or chemicals.

"Take or start the federal action" means the date that the federal agency signs or approves the permit, license, grant, or contract or otherwise physically begins the federal action that requires a conformity evaluation under this chapter.

"Total of direct and indirect emissions" means the sum of direct and indirect emissions increases and decreases caused by the federal action, that is, the "net" emissions considering all direct and indirect emissions. Any emissions decreases used to reduce the total shall have already occurred or shall be enforceable under state and federal law. The portion of emissions which are exempt or presumed to conform under 9VAC5-160-30 are not included in the "total of direct and indirect emissions," except as provided in 9VAC5-160-30 M. The "total of direct and indirect emissions" includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. Segmentation of projects for conformity analyses when emissions are reasonably foreseeable is prohibited.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, human-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.

Part II
General Provisions

9VAC5-160-30. Applicability.

A. The provisions of this regulation shall apply in all nonattainment and maintenance areas for criteria pollutants for which the area is designated nonattainment or has a maintenance plan. Conformity requirements for newly designated nonattainment areas are not applicable until one year after the effective date of the final nonattainment designation for each national ambient air quality standard and pollutant in accordance with § 176(c)(6) of the federal Clean Air Act.

B. The provisions of this chapter apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, and particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀), and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM_2.5).

C. The provisions of this chapter apply with respect to emissions of the following precursor pollutants:

1. For ozone:

a. Nitrogen oxides, unless an area is exempted from nitrogen oxides requirements under § 182(f) of the federal Clean Air Act, and

b. Volatile organic compounds.

2. For PM₁₀, those pollutants described in the PM₁₀ nonattainment area applicable implementation plan as significant contributors to the particulate matter PM₁₀ levels.

3. For PM_2.5, (i) sulfur dioxide in all PM_2.5 nonattainment and maintenance areas, (ii) nitrogen oxides in all PM_2.5 nonattainment and maintenance areas unless both the department and EPA determine that it is not a significant precursor, and (iii) volatile organic compounds and ammonia only in PM_2.5 nonattainment or maintenance areas where either the department or EPA determines that they are significant precursors.

D. Conformity determinations for federal actions related to transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the Federal Transit Act (49 USC § 5301 et seq.) shall meet the procedures and criteria of the Regulation for Transportation Conformity (9VAC5-150-10 et seq.) 9VAC5-151 (Regulation for Transportation Conformity), in lieu of the procedures set forth in this chapter.

E. For federal actions not covered by subsection D of this section, a conformity determination is required for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a federal action would equal or exceed any of the rates in subdivision 1 or 2 of this subsection.

1. For the purposes of this subsection, the following rates apply in nonattainment areas:

	Tons per year
Ozone (VOCs or NOX):
Serious nonattainment areas	50
Severe nonattainment areas	25
Extreme nonattainment areas	10
Other ozone nonattainment areas outside an ozone transport region	100
Marginal and moderate Other ozone nonattainment areas inside an ozone transport region:
VOC	50
NOX	100
Carbon monoxide, all nonattainment areas	100
Sulfur dioxide or nitrogen dioxide, all nonattainment areas	100
PM10:
Moderate nonattainment areas	100
Serious nonattainment areas	70
PM2.5:
Direct emissions	100
Sulfur dioxide	100
Nitrogen oxides (unless determined not to be significant precursors)	100
Volatile organic compounds or ammonia (if determined to be significant precursors)	100
Lead, all nonattainment areas	25

2. For the purposes of this subsection, the following rates apply in maintenance areas:

	Tons per year
Ozone (NOx), sulfur dioxide, or nitrogen dioxide, all maintenance areas	100
Ozone (VOCs):
Maintenance areas inside an ozone transport region	50
Maintenance areas outside an ozone transport region	100
Carbon monoxide, all maintenance areas	100
PM10, all maintenance area areas	100
PM2.5:
Direct emissions	100
Sulfur dioxide	100
Nitrogen oxides (unless determined not to be a significant precursor)	100
Volatile organic compounds or ammonia (if determined to be significant precursors)	100
Lead, all maintenance areas	25

F. The requirements of this section shall not apply to the following federal actions:

1. Actions where the total of direct and indirect emissions are below the emissions levels specified in subsection E of this section.

2. The following actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:

a. Judicial and legislative proceedings.

b. Continuing and recurring activities such as permit renewals where activities conducted shall be similar in scope and operation to activities currently being conducted.

c. Rulemaking and policy development and issuance.

d. Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities.

e. Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law-enforcement personnel.

f. Administrative actions such as personnel actions, organizational changes, debt management, internal agency audits, program budget proposals, and matters relating to administration and collection of taxes, duties, and fees.

g. The routine, recurring transportation of materiel and personnel.

h. Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and for repair or overhaul or both.

i. Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal shall be at an approved disposal site.

j. With respect to existing structures, properties, facilities, and lands where future activities conducted shall be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands, actions such as relocation of personnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency.

k. The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted shall be similar in scope and operation to activities currently being conducted.

l. Planning, studies, and provision of technical assistance.

m. Routine operation of facilities, mobile assets, and equipment.

n. Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer.

o. The designation of empowerment zones, enterprise communities, or viticultural areas.

p. Actions by any of the federal banking agencies or the federal reserve banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any state, agency, or instrumentality of the United States.

q. Actions by the Board of Governors of the federal reserve system or any federal reserve bank to effect monetary or exchange rate policy.

r. Actions that implement a foreign affairs function of the United States.

s. Actions or portions thereof associated with transfers of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC 9601 et seq., and where the federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties.

t. Transfers of real property, including land, facilities, and related personal property from a federal entity to another federal entity, and assignments of real property, including land, facilities, and related personal property from a federal entity to another federal entity, for subsequent deeding to eligible applicants.

u. Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States.

v. Air traffic control activities and adopting approach, departure, and en route procedures for aircraft operations above the mixing height specified in the applicable implementation plan. Where the applicable implementation plan does not specify a mixing height, the federal agency may use the 3,000 feet above ground level as a default mixing height, unless the agency demonstrates that use of a different mixing height is appropriate because the change in emissions at and above that height caused by the federal action is de minimis.

3. Actions where the emissions are not reasonably foreseeable, such as the following:

a. Initial outer continental shelf lease sales which are made on a broad scale and are followed by exploration and development plans on a project level.

b. Electric power marketing activities that involve the acquisition, sale, and transmission of electric energy.

4. Individual actions which implement a decision to conduct or carry out a program that has been found to conform to the applicable implementation plan, such as prescribed burning actions which are consistent with a conforming land management plan, that has been found to conform to the applicable implementation plan. The land management plan shall have been found to conform within the past five years.

G. Notwithstanding the other requirements of this section, a conformity determination is not required for the following federal actions or portions thereof:

1. The portion of an action that includes major or minor new or modified stationary sources that require a permit under the new source review program.

2. Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which that are typically commenced on the order of hours or days after the emergency or disaster and, if applicable, [ which that ] meet the requirements of subsection H of this section.

3. Research, investigations, studies, demonstrations, or training (other than those exempted under subdivision F 2 of this section), where no environmental detriment is incurred, or the particular action furthers air quality research, as determined by the department.

4. Alteration and additions of existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations (for example, hush houses for aircraft engines and scrubbers for air emissions).

5. Direct emissions from remedial and removal actions carried out under CERCLA and associated regulations to the extent the emissions either comply with the substantive requirements of the new source review program, or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA.

H. Federal actions which are part of a continuing response to an emergency or disaster under subdivision G 2 of this section and which are to be taken more than six months after the commencement of the response to the emergency or disaster under subdivision G 2 of this section are exempt from the requirements of this subsection only if:

1. The federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional six months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests, and foreign policy commitments; or

2. For actions which are to be taken after those sections actions covered by subdivision H 1 of this section, the federal agency makes a new determination as provided in subdivision H 1 of this section, and:

a. Provides a draft copy of the written determinations required to affected EPA regional offices, the affected states and air pollution control agencies, and any federally recognized Indian tribal government in the nonattainment or maintenance area. Those organizations shall be allowed 15 days from the beginning of the extension period to comment on the draft determination; and

b. Within 30 days after making the determination, publish a notice of the determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action.

3. If additional actions are necessary in response to an emergency or disaster under subdivision G 2 of this section beyond the specified time period in subdivision 2 of this subsection, a federal agency may make a new written determination as described in subdivision 2 of this subsection for as many six-month periods as needed, but in no case shall this exemption extend beyond three six-month periods except where an agency provides information to EPA and the department stating that the conditions that gave rise to the emergency exemption continue to exist and how such conditions effectively prevent the agency from conducting a conformity evaluation.

I. Notwithstanding other requirements of this chapter, actions specified by individual federal agencies that have met the criteria set forth in either subdivision J 1, or J 2, or J 3 of this section and the procedures set forth in subsection K of this section are presumed to conform, except as provided in subsection M of this section. Actions specified by individual federal agencies as presumed to conform shall not be used in combination with one another when the total direct and indirect emissions from the combination of actions would equal or exceed any of the rates specified in subdivisions E 1 or E 2 of this section.

J. The federal agency shall meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either subdivision 1 or, 2, or 3 of this subsection.

1. The federal agency shall clearly demonstrate, using methods consistent with this regulation, that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:

a. Cause or contribute to any new violation of any standard in any area;

b. Interfere with the provisions in the applicable implementation plan for maintenance of any standard;

c. Increase the frequency or severity of any existing violation of any standard in any area;

d. Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable implementation plan for purposes of:

(1) A demonstration of reasonable further progress;

(2) A demonstration of attainment; or

(3) A maintenance plan.

2. The federal agency shall provide documentation that the total of direct and indirect emissions from the future actions would be below the emission rates for a conformity determination that are established in subsection B of this section, based, for example, on similar actions taken over recent years.

3. The federal agency shall clearly demonstrate that the emissions from the type or category of actions and the amount of emissions from the action are included in the applicable implementation plan and the department provides written concurrence that the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the applicable implementation plan.

K. In addition to meeting the criteria for establishing exemptions set forth in subdivision J 1 or, J 2, or J 3 of this section, the following procedures shall also be complied with to presume that activities shall conform:

1. The federal agency shall identify through publication in the Federal Register its list of proposed activities that are presumed to conform, and the analysis, assumptions, emissions factors, and criteria used as the basis for the presumptions. The notice shall clearly identify the type and size of the action that would be presumed to conform and provide criteria for determining if the type and size of action qualifies it for the presumption;

2. The federal agency shall notify the appropriate EPA regional office or offices, department, and local air quality agencies and, where applicable, the lead planning organization, and the metropolitan planning organization and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform. If the presumed to conform action has regional or national application (e.g., the action will cause emission increases in excess of the de minimis levels identified in subsection E of this section in more than one EPA region), the federal agency, as an alternative to sending it to EPA regional offices, may send the draft conformity determination to EPA, Office of Air Quality Planning and Standards;

3. The federal agency shall document its response to all the comments received and make the comments, response, and final list of activities available to the public upon request; and

4. The federal agency shall publish the final list of the such activities in the Federal Register.

L. Notwithstanding the other requirements of this section, when the total of direct and indirect emissions of any pollutant from a federal action does not equal or exceed the rates specified in subsection E of this section, but represents 10% or more of a nonattainment or maintenance area's total emissions of that pollutant, the action is defined as a regionally significant action and the requirements of 9VAC5-160-110 and 9VAC5-160-130 through 9VAC5-160-180 shall apply for the federal action. Emissions from the following actions are presumed to conform:

1. Actions at installations with facility-wide emission budgets meeting the requirements in 9VAC5-160-181 provided that the department has included the emission budget in the EPA-approved applicable implementation plan and the emissions from the action along with all other emissions from the installation will not exceed the facility-wide emission budget.

2. Prescribed fires conducted in accordance with a smoke management program that meets the requirements of EPA's Interim Air Quality Policy on Wildland and Prescribed Fires (April 1998) or an equivalent replacement EPA policy.

3. Emissions for actions that the department identifies in the EPA-approved applicable implementation plan as presumed to conform.

M. Where an action presumed to be de minimis under subdivision F 1 or F 2 of this section or otherwise presumed to conform under subsection I of this section is a regionally significant action or where an action otherwise presumed to conform under subsection I of this section does not in fact meet one of the criteria in subdivision J 1 of this section, that action shall not be considered de minimis or presumed to conform and the requirements of 9VAC5-160-110 and 9VAC5-160-130 through 9VAC5-160-180 shall apply for the federal action. Even though an action would otherwise be presumed to conform under subsection I or L of this section, an action shall not be presumed to conform and the requirements of 9VAC5-160-110 through 9VAC5-160-180, 9VAC5-160-182 through 9VAC5-160-184, and 9VAC5-160-190 shall apply to the action if EPA or a third party shows that the action would:

1. Cause or contribute to any new violation of any standard in any area;

2. Interfere with provisions in the applicable implementation plan for maintenance of any standard;

3. Increase the frequency or severity of any existing violation of any standard in any area; or

4. Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable implementation plan for purposes of (i) a demonstration of reasonable further progress, (ii) a demonstration of attainment, or (iii) a maintenance plan.

N. Any measures used to affect or determine applicability of this chapter, as determined under this section, shall result in projects that are in fact de minimis, shall result in the de minimis levels prior to the time the applicability determination is made, and shall be state or federally enforceable. Any measures that are intended to reduce air quality impacts for this purpose shall be identified (including the identification and quantification of all emission reductions claimed) and the process for implementation (including any necessary funding of the measures and tracking of the emission reductions) and enforcement of the measures shall be described, including an implementation schedule containing explicit timelines for implementation. Prior to a determination of applicability, the federal agency making the determination shall obtain written commitments from the appropriate persons or agencies to implement any measures which are identified as conditions for making the determinations. The written commitment shall describe the mitigation measures and the nature of the commitment, in a manner consistent with the previous sentence. After this regulation is approved by EPA, enforceability through the applicable implementation plan of any measures necessary for a determination of applicability shall apply to all persons who agree to reduce direct and indirect emissions associated with a federal action for a conformity applicability determination.

Part III
Criteria and Procedures for Making Conformity Determinations

9VAC5-160-110. General.

A. No federal agency shall engage in, support in any way, or provide financial assistance for, license, or permit, or approve any activity which does not conform to an applicable implementation plan.

B. A federal agency must make a determination that a federal action conforms to the applicable implementation plan in accordance with the requirements of this chapter before the action is taken.

C. Subsection B of this section does not include federal actions where either: Reserved.

1. A NEPA analysis was completed as evidenced by a final environmental assessment, environmental impact statement, or finding of no significant impact that was prepared prior to January 31, 1994, or

2. a. Prior to January 31, 1994, an environmental assessment was commenced or a contract was awarded to develop the specific environmental analysis,

b. Sufficient environmental analysis is completed by March 15, 1994, so that the federal agency may determine that the federal action is in conformity with the specific requirements and the purposes of the applicable implementation plan pursuant to the agency's affirmative obligation under § 176(c) of the federal Clean Air Act, and

c. A written determination of conformity under § 176(c) of the federal Clean Air Act has been made by the federal agency responsible for the federal action by March 15, 1994.

D. Notwithstanding any provision of this chapter, a determination that an action is in conformity with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, NEPA, or the federal Clean Air Act.

E. If an action would result in emissions originating in more than one nonattainment or maintenance area, the conformity must be evaluated for each area separately.

9VAC5-160-120. Conformity analysis Federal agency conformity responsibility.

Any federal agency taking an action subject to this chapter department, agency, or instrumentality of the federal government taking an action subject to this regulation shall make its own conformity determination consistent with the requirements of this part. In making its conformity determination, a federal agency shall follow the requirements in 9VAC5-160-130 through 9VAC5-160-180 and 9VAC5-160-182 through 9VAC5-160-185 and shall consider comments from any interested parties. Where multiple federal agencies have jurisdiction for various aspects of a project, a federal agency may choose to adopt the analysis of another federal agency (to the extent the proposed action and impacts analyzed are the same as the project for which a conformity determination is required) or develop its own analysis in order to make its conformity determination.

9VAC5-160-130. Reporting requirements.

A. A federal agency making a conformity determination under 9VAC5-160-160 9VAC5-160-120 through 9VAC5-160-180 and 9VAC5-160-182 through 9VAC5-160-184 shall provide to the appropriate EPA regional office or offices, department and local air quality agencies, any federally recognized Indian tribal government in the nonattainment or maintenance area and, where applicable, affected federal land managers, the lead planning organization, and the metropolitan planning organization, a 30-day notice [ which that ] describes the proposed action and the federal agency's draft conformity determination on the action. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in 9VAC5-160-30 E in three or more EPA regions), the federal agency, as an alternative to sending it to EPA regional offices, may provide the notice to EPA's Office of Air Quality Planning and Standards.

B. A federal agency shall notify the appropriate EPA regional office or offices, department and local air quality agencies, any federally recognized Indian tribal government in the nonattainment or maintenance area and, where applicable, affected federal land managers, the lead planning organization, and the metropolitan planning organization within 30 days after making a final conformity determination under 9VAC5-160-160.

C. The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, security manuals, or executive orders concerning the use, access, and release of such materials. Subject to applicable procedures to protect restricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annex to the determination for review by federal and department representatives who have received appropriate clearances to review the information.

9VAC5-160-140. Public participation.

A. Upon request by any person regarding a specific federal action, a federal agency shall make available, subject to the limitation in subsection E of this section, for review its draft conformity determination under 9VAC5-160-160 with supporting materials which that describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination.

B. A federal agency shall make public its draft conformity determination under 9VAC5-160-160 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement such as occurs in the NEPA process. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in 9VAC5-160-30 E in three or more EPA regions), the federal agency, as an alternative to publishing separate notices, may publish a notice in the Federal Register.

C. A federal agency shall document its response to all the comments received on its draft conformity determination under 9VAC5-160-160 and make the comments and responses available, subject to the limitation in subsection E of this section, upon request by any person regarding a specific federal action, within 30 days of the final conformity determination.

D. A federal agency shall make public its final conformity determination under 9VAC5-160-160 for a federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action within 30 days of the final conformity determination. If the action would have multi-regional or national impacts, the federal agency, as an alternative, may publish the notice in the Federal Register.

E. The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, or executive orders concerning the release of such materials.

9VAC5-160-150. Frequency of conformity determinations Reevaluation of conformity.

A. Once a conformity determination is completed by a federal agency, that determination is not required to be reevaluated if the agency has maintained a continuous program to implement the action, the determination has not lapsed as specified in subsection B of this section, or any modification to the action does not result in an increase in emissions above the levels specified in 9VAC5-160-30 B. If a conformity determination is not required for the action at the time NEPA analysis is completed, the date of the finding of no significant impact for an environmental assessment, a record of decision for an environmental impact statement, or a categorical exclusion determination may be used as a substitute date for the conformity determination date.

B. The conformity status of a federal action automatically lapses five years from the date a final conformity determination is reported under 9VAC5-160-130, unless the federal action has been completed or a continuous program has been commenced to implement that the federal action within a reasonable time has commenced.

B. C. Ongoing federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as the such activities are within the scope of the final conformity determination reported under 9VAC5-160-130.

C. If, after the conformity determination is made, the federal action is changed so that there is an increase in the total of direct and indirect emissions above the levels in 9VAC5-160-30 E, a new conformity determination is required. D. If the federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in 9VAC5-160-30 B and changes to the action would result in the total emissions from the action being above the limits in 9VAC5-160-30 B, then the federal agency shall make a conformity determination.

9VAC5-160-160. Criteria for determining conformity of general federal actions.

A. Any An action required under 9VAC5-160-30 to have a conformity determination for a specific pollutant, shall be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in 9VAC5-160-30 E, or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of subsection C of this section, and meets any of the following requirements:

1. For any criteria pollutant or precursor, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable implementation plan's attainment or maintenance demonstration or reasonable further progress milestone or in a facility-wide emission budget included in an applicable implementation plan in accordance with 9VAC5-160-181;

2. For precursors of ozone or, nitrogen dioxide, or particulate matter, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the federal action) through a revision to the applicable implementation plan or a similarly enforceable measure that effects emission reductions so that there is no net increase in emissions of that pollutant;

3. For any directly emitted criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the action meet meets the requirements:

a. Specified in subsection B of this section, based on areawide air quality modeling analysis and local air quality modeling analysis; or

b. Meet the requirements of subdivision 5 of this subsection, and, for local air quality modeling analysis, the requirement of subsection B of this section;

4. For carbon monoxide or PM₁₀ particulate matter:

a. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 and consistent with the applicable implementation plan) that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in subsection B of this section, based on local air quality modeling analysis; or

b. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 and consistent with the applicable implementation plan) that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in subsection B of this section, based on areawide modeling, or meet the requirements of subdivision 5 of this subsection; or

5. For ozone or nitrogen dioxide, and for the purposes of subdivisions 3 b and 4 b of this subsection, each portion of the action or the action as a whole meets any of the following requirements:

a. Where EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 the applicable implementation plan after the area was designated as nonattainment and the department makes a determination that as provided in subdivision 5 a (1) of this subsection or where the Commonwealth of Virginia makes a commitment as provided in subdivision 5 a (2) of this subsection:

(1) The total of direct and indirect emissions from the action or portion thereof is determined and documented by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed the emissions budgets specified in the applicable implementation plan.

(2) The total of direct and indirect emissions from the action or portion thereof is determined and documented by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would exceed an emissions budgets specified in the applicable implementation plan and the Governor or the Governor's designee for state implementation plan actions makes a written commitment to EPA which includes the following:

(a) A specific schedule for adoption and submittal of a revision to the applicable implementation plan which would achieve the needed emissions reductions prior to the time emissions from the federal action would occur;

(b) Identification of specific measures for incorporation into the applicable implementation plan which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable implementation plan.;

(c) A demonstration that all existing applicable implementation plan requirements are being implemented in the area for the pollutants affected by the federal action, and that local authority to implement additional requirements has been fully pursued;

(d) A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action; and

(e) Written documentation including all air quality analyses supporting the conformity determination;.

(3) Where a federal agency made a conformity determination based on a commitment from the Commonwealth of Virginia under subdivision 5 a (2) of this subsection, and the department has submitted an implementation plan to EPA covering the time period during which the emissions will occur or is scheduled to submit such an implementation plan within 18 months of the conformity determination, the commitment is automatically deemed a call for a revision to the applicable implementation plan by EPA under § 110(k)(5) of the federal Clean Air Act, effective on the date of the federal conformity determination and requiring response within 18 months or any shorter time within which the Commonwealth of Virginia commits to revise the applicable implementation plan;.

(4) Where a federal agency made a conformity determination based on a commitment from the Commonwealth of Virginia under subdivision 5 a (2) of this subsection and the department has not submitted an implementation plan covering the time period when the emissions will occur or is not scheduled to submit such an implementation plan within 18 months of the conformity determination, the department will, within 18 months, submit to EPA a revision to the existing implementation plan committing to include the emissions in the future implementation plan revision.

b. The action or portion thereof, as determined by the metropolitan planning organization, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable implementation plan under 40 CFR Part 51, Subpart T, or 40 CFR Part 93, Subpart A;.

c. The action or portion thereof fully offsets its emissions within the same attainment nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violation in the past, in the area with the federal action) through a revision to the applicable implementation plan or an equally enforceable measure that effects emissions reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant;.

d. Where EPA has not approved a revision to the relevant implementation plan attainment or maintenance demonstration since 1990 since the area was redesignated or classified, the total of direct and indirect emissions from the action for the future years (described in 9VAC5-160-170) do not increase emissions with respect to the baseline emissions;.

(1) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:

(a) Calendar year 1990 The most current calendar year with a complete emissions inventory available before an area is designated unless EPA sets another year;

(b) The calendar year that is the basis for the classification (or, where the classification is based on multiple years, the year that is most representative in terms of the level of activity), if a classification is promulgated in 40 CFR Part 81 The emission budget in the applicable implementation plan; or

(c) The year of the baseline inventory in the PM₁₀-applicable implementation plan;.

(2) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in 9VAC5-160-170 D) using the historic activity levels (described in subdivision 5 d (1) of this subsection) and appropriate emission factors for the future years; or.

e. Where the action involves regional water or wastewater projects or both, the projects are sized to meet only the needs of population projections that are in the applicable implementation plan, based on assumptions regarding per capita use that are developed or approved in accordance with 9VAC5-160-170 A.

B. The areawide or local air quality modeling analyses or both shall:

1. Meet the requirements of 9VAC5-160-170; and

2. Show that the action does not:

a. Cause or contribute to any new violation of any standard in any area; or

b. Increase the frequency or severity of any existing violation of any standard in any area.

C. Notwithstanding any other requirements of this section, an action subject to this section may not be determined to conform to the applicable implementation plan unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable implementation plan, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements, and the action is otherwise in accordance with all relevant requirements of the applicable implementation plan.

D. Any analyses required under this section shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in accordance with 9VAC5-160-180 before the determination of conformity is made.

9VAC5-160-170. Procedures for conformity determinations.

A. The analyses required under this section shall be based on the latest planning assumptions.

1. All planning assumptions (including, but not limited to, per capita water and sewer use, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, wood stoves per household, and the geographic distribution of population growth) shall be derived from the estimates of current and future population, employment, travel, and congestion most recently approved by the metropolitan planning organization or other agency authorized to make the estimates, where available. The conformity determination shall also be based on the latest assumptions about current and future background concentrations and other federal actions.

2. Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion shall be approved by the metropolitan planning organization or other agency authorized to make the estimates for the urban area.

B. The analyses required under this subsection shall be based on the latest and most accurate emission estimation techniques available as described below, unless the such techniques are inappropriate. If the such techniques are inappropriate and, the federal agency may obtain written approval of from the appropriate EPA Regional Administrator is obtained for any a modification or substitution, they may be modified or of another technique substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program.

1. For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of the applicable implementation plan shall be used for the conformity analysis as specified in subdivisions 1 a and 1 b of this subsection.

a. The EPA shall publish in the Federal Register a notice of availability of any new motor vehicle emissions model.

b. A grace period of three months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than three years months before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA, if a final conformity determination is made within three years of the analysis.

2. For nonmotor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part of the conformity analysis.

C. The air quality modeling analyses required under this subpart section shall be based on the applicable air quality models, databases, and other requirements specified in Appendix W of 40 CFR Part 51, unless:.

1. The guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis, or, where appropriate, on a generic basis for a specific federal agency program; and

2. Written approval of the EPA Regional Administrator is obtained for any modification or substitution.

D. The analyses required under this subsection, except 9VAC5-160-160 A 1, shall be based on the total of direct and indirect emissions from the action and shall reflect emission scenarios that are expected to occur under each of the following cases:

1. The federal Clean Air Act-mandated attainment year specified in the applicable implementation plan or, if applicable, the farthest year for which emissions are projected in the maintenance plan; the applicable implementation plan does not specify an attainment year, the latest attainment year possible under the federal Clean Air Act; or

2. The year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and last year for which emissions are projected in the maintenance plan;

3. The year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and

4. Any year for which the applicable implementation plan specifies an emissions budget.

9VAC5-160-180. Mitigation of air quality impacts.

A. Any measures that are intended to mitigate air quality impacts shall be identified (including the identification and quantification of all emission reductions claimed) and the process for implementation (including any necessary funding of the measures and tracking of the emission reductions) and enforcement of the measures shall be described, including an implementation schedule containing explicit timelines for implementation.

B. Prior to determining that a federal action is in conformity, the federal agency making the conformity determination shall obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity decisions. The written commitment shall describe the mitigation measures and the nature of the commitment, in a manner consistent with subsection A of this section.

C. Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations shall comply with the obligations of the commitments.

D. In instances where the federal agency is licensing, permitting, or otherwise approving the action of another governmental or private entity, approval by the federal agency shall be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination as provided in subsection A of this section.

E. When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination in accordance with 9VAC5-160-150 and 9VAC5-160-160 and this section. Any proposed change in the mitigation measures is subject to the reporting requirements of 9VAC5-160-130 and the public participation requirements of 9VAC5-160-140.

F. Written comments to mitigation measures shall be obtained prior to a positive conformity determination, and the such commitments shall be fulfilled.

G. After EPA approves this regulation, any agreements, including mitigation measures, necessary for a conformity determination shall be both state and federally enforceable. Enforceability through the applicable implementation plan shall apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination.

9VAC5-160-181. Conformity evaluation for federal installations with facility-wide emission budgets.

A. The department may, in cooperation with federal agencies or third parties authorized by the agency that operate installations subject to federal oversight, develop and adopt a facility-wide emission budget to be used for demonstrating conformity under 9VAC5-160-160 A 1. The facility-wide budget shall meet the following criteria:

1. Be for a set time period;

2. Cover the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance;

3. Include specific quantities allowed to be emitted on an annual or seasonal basis;

4. The emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area;

5. Include specific measures to ensure compliance with the budget, such as periodic reporting requirements or compliance demonstration, when the federal agency is taking an action that would otherwise require a conformity determination;

6. Be submitted to EPA as a revision to the applicable implementation plan; and

7. The revision to the applicable implementation plan shall be approved by EPA.

B. The facility-wide budget developed and adopted in accordance with subsection A of this section may be revised by following the requirements in subsection A of this section.

C. Total direct and indirect emissions from federal actions in conjunction with all other emissions subject to general conformity from the facility that do not exceed the facility budget adopted pursuant to subsection A of this section are presumed to conform to the applicable implementation plan and do not require a conformity analysis.

D. If the total direct and indirect emissions from the federal actions in conjunction with the other emissions subject to general conformity from the facility exceed the budget adopted pursuant to subsection A of this section, the action shall be evaluated for conformity. A federal agency may use the compliance with the facility-wide emissions budget as part of the demonstration of conformity, i.e., the agency would have to mitigate or offset the emissions that exceed the emission budget.

E. If the applicable implementation plan for the area includes a category for construction emissions, the negotiated budget may exempt construction emissions from further conformity analysis.

9VAC5-160-182. Emissions beyond the time period covered by the applicable implementation plan.

If a federal action would result in total direct and indirect emissions above the applicable thresholds that would be emitted beyond the time period covered by the applicable implementation plan, the federal agency may (i) demonstrate conformity with the last emission budget in the applicable implementation plan or (ii) request the Commonwealth of Virginia to adopt an emissions budget for the action for inclusion in the applicable implementation plan. The Commonwealth of Virginia will submit a revision of the applicable implementation plan to EPA within 18 months either including the emissions in the existing implementation plan or establishing an enforceable commitment to include the emissions in future revisions to the applicable implementation plan based on the latest planning assumptions at the time of the revision to the applicable implementation plan. No such commitment by the Commonwealth of Virginia shall restrict the Commonwealth of Virginia's ability to require RACT, RACM, or any other control measures within the Commonwealth of Virginia's authority to ensure timely attainment of the national ambient air quality standards.

9VAC5-160-183. Timing of offsets and mitigation measures.

A. The emissions reductions from an offset or mitigation measure used to demonstrate conformity shall occur during the same calendar year as the emission increases from the action except as provided in subsection B of this section.

B. The department may approve emissions reductions in other years provided:

1. The reductions are greater than the emission increases by the following ratios:

Extreme nonattainment areas:	1.5:1
Severe nonattainment areas:	1.3:1
Serious nonattainment areas:	1.2:1
Moderate nonattainment areas:	1.15:1
All other areas:	1.1:1

2. The time period for completing the emissions reductions shall not exceed twice the period of the emissions.

3. The offset or mitigation measure with emissions reductions in another year shall not:

a. Cause or contribute to a new violation of any air quality standard;

b. Increase the frequency or severity of any existing violation of any air quality standard; or

c. Delay the timely attainment of any standard or any interim emissions reductions or other milestones in any area.

C. The approval by the department of an offset or mitigation measure with emissions reductions in another year does not relieve the Commonwealth of Virginia of any obligation to meet any implementation plan or federal Clean Air Act milestone or deadline. The approval of an alternate schedule for mitigation measures is at the discretion of the department, and it is not required to approve an alternate schedule.

9VAC5-160-184. Inter-precursor mitigation measures and offsets.

Federal agencies shall reduce the same type of pollutant as being increased by the federal action except the department may approve offsets or mitigation measures of different precursors of the same criteria pollutant, if such trades are allowed by the Commonwealth of Virginia in 9VAC5-80 (Permits for Stationary Sources) as approved in the applicable implementation plan, are technically justified, and have a demonstrated environmental benefit.

9VAC5-160-185. Early emission reduction credit programs at federal facilities and installation subject to federal oversight.

A. Federal facilities and installations subject to federal oversight may, with the approval of the department, create an early emissions reductions credit program. The federal agency may create the emission reduction credits in accordance with the requirements in subsection B of this section and use them in accordance with subsection C of this section.

B. Creation of emission reduction credits shall be accomplished as follows:

1. Emissions reductions shall be quantifiable through the use of standard emission factors or measurement techniques. If nonstandard factors or techniques to quantify the emissions reductions are used, the federal agency shall receive approval from the department and from the EPA regional office. The emission reduction credits do not have to be quantified before the reduction strategy is implemented, but shall be quantified before the credits are used in the general conformity evaluation.

2. The emission reduction methods shall be consistent with the applicable implementation plan attainment and reasonable further progress demonstrations.

3. The emissions reductions shall not be required by or credited to other applicable implementation plan provisions.

4. Both the department and federal air quality agencies shall be able to take legal action to ensure continued implementation of the emission reduction strategy. In addition, private citizens shall also be able to initiate action to ensure compliance with the control requirement.

5. The emissions reductions shall be permanent or the timeframe for the reductions shall be specified.

6. The federal agency shall document the emissions reductions and provide a copy of the document to the department and the EPA regional office for review. The documentation shall include a detailed description of the emission reduction strategy and a discussion of how it meets the requirements of subdivisions 1 through 5 of this subsection.

C. The emission reduction credits created in accordance with subsection B of this section may be used, subject to the following limitations, to reduce the emissions increase from a federal action at the facility for the conformity evaluation.

1. If the technique used to create the emission reduction is implemented at the same facility as the federal action and could have occurred in conjunction with the federal action, then the credits may be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in 9VAC5-160-30 and as offsets or mitigation measures required by 9VAC5-160-160.

2. If the technique used to create the emission reduction is not implemented at the same facility as the federal action or could not have occurred in conjunction with the federal action, then the credits shall not be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in 9VAC5-160-30, but may be used to offset or mitigate the emissions as required by 9VAC5-160-160.

3. Emissions reductions credits shall be used in the same year in which they are generated.

4. Once the emission reduction credits are used, they shall not be used as credits for another conformity evaluation. However, unused credits from a strategy used for one conformity evaluation may be used for another conformity evaluation as long as the reduction credits are not double counted.

5. Federal agencies shall notify the department and the EPA regional office when the emission reduction credits are being used.

9VAC5-160-190. Savings provision.

The federal conformity rules under 40 CFR Part 51 subpart W, in addition to any existing applicable Commonwealth of Virginia requirements, shall establish the conformity criteria and procedures necessary to meet the requirements of § 176(c) of the federal Clean Air Act until such time as this regulation is approved by EPA. Following EPA approval of this regulation, the approved or approved portion of this regulation shall govern conformity determinations and the federal conformity regulations contained in 40 CFR Part 93 shall apply only for the portion, if any, of this regulation that is not approved by EPA requirements of 40 CFR Part 93 to demonstrate conformity required under § 176(c) of the federal Clean Air Act apply to all federal actions in designated nonattainment and maintenance areas where EPA has not approved this regulation. When EPA approves this regulation in a revision to the Commonwealth of Virginia applicable implementation plan, a conformity evaluation is governed by the approved or approved portion of this regulation. The regulations contained in 40 CFR Part 93 apply only for the portions, if any, of the 40 CFR Part 93 requirements not contained in the provisions of this regulation approved by EPA. In addition, any previously applicable implementation plan requirements relating to conformity shall remain enforceable until the Commonwealth revises its applicable implementation plan to specifically remove them and that revision is approved by EPA approves the revision to the Commonwealth of Virginia's applicable implementation plan to specifically include the revised requirements or remove requirements.

9VAC5-160-200. Review and confirmation of this chapter by board. (Repealed.)

A. Prior to January 1, 2000, the department shall provide the board with an analysis to include (i) an assessment of the effectiveness of this chapter; (ii) the status of any specific federal requirements and the identification of any provisions more stringent than the federal requirements; (iii) the federal approval status of this chapter; and (iv) an assessment of the need for continuation of this chapter.

B. Upon review of the department's analysis, the board shall confirm (i) the continuation of this chapter, (ii) the repeal of this chapter, or (iii) the need to amend this chapter. If a decision is made in either of the latter two cases, the board shall authorize the department to initiate the applicable regulatory process to carry out the decision of the board.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC5-160)

Compilation of Air Pollutant Emission Factors (AP-42), September 1985, with Supplement B, September 1988; Supplement C, September 1990; and Supplement D, September 1991.

Compilation of Air Pollutant Emission Factors, Volume I: Stationary Point and Area Sources, AP-42, Fifth Edition, January 1995, stock number 055-000-00500-1; Supplement A, stock number 055-000-00551-6, February 1996; Supplement B, stock number 055-000-00565, November 1996; Supplement C, stock number 055-000-00587-7, November 1997; Supplement D, August 1998; Supplement E, September 1999; Supplement F, September 2000; U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Office of Air and Radiation, Research Triangle Park, NC 27711 (http://www.epa.gov/ttn/chief/ap42/).

Interim Air Quality Policy on Wildland and Prescribed Fires, April 23, 1998, U.S. Environmental Protection Agency, Office of Air and Radiation, Research Triangle Park, NC 27711.

Title of Regulation: 9VAC5-530. Electric Generator Voluntary Demand Response General Permit (Rev. Dg.) (adding 9VAC5-530-10 through 9VAC5-530-290).

Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.

Public Hearing Information:

March 16, 2011 - 9:30 a.m. - Department of Environmental Quality, 629 East Main Street, Second Floor Conference Room A, Richmond, VA

Public Comment Deadline: April 4, 2011.

Agency Contact: Mary E. Major, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.

Basis: Section 10.1-1308 of the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia) authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution to protect public health and welfare. Section 10.1-1307.02 B 4 of the Virginia Air Pollution Control Law establishes the requirement to develop a general permit for the construction, installation, and operation of distillate oil, natural gas, liquid propane gas, and biodiesel fired electric generating facilities that participate in a voluntary demand response program (i.e., load curtailment, demand response, peak shaving, or like program) and that qualify as nonmajor facilities under the federal Clean Air Act Amendments of 1990.

Federal Requirements: Section 110(a) of the Clean Air Act (CAA) mandates that each state adopt and submit to the Environmental Protection Agency (EPA) a plan that provides for the implementation, maintenance, and enforcement of each primary and secondary air quality standard within each air quality control region in the state. The state implementation plan shall be adopted only after reasonable public notice is given and public hearings are held. The plan shall include provisions to accomplish, among other tasks, the following: (i) establish enforceable emission limitations and other control measures as necessary to comply with the provisions of the CAA, including economic incentives such as fees, marketable permits, and auctions of emissions rights; (ii) establish a program for the enforcement of the emission limitations and schedules for compliance; and (ii) establish programs for the regulation and permitting of the modification and construction of any stationary source within the areas covered by the plan to assure the achievement of the ambient air quality standards.

40 CFR Part 51 sets out requirements for the preparation, adoption, and submittal of state implementation plans. These requirements mandate that any such plan shall include several provisions, as summarized below.

Subpart F (Procedural Requirements) specifies definitions of key terms, stipulations and format for plan submission, requirements for public hearings, and conditions for plan revisions and federal approval.

Subpart G (Control Strategy) specifies the description of emissions reductions estimates sufficient to attain and maintain the standards, the description of control measures and schedules for implementation, time periods for demonstrations of the control strategy's adequacy, an emissions inventory, an air quality data summary, data availability, special requirements for lead emissions, stack height provisions, and intermittent control systems.

Subpart I (Review of New Sources and Modifications) specifies legally enforceable procedures, public availability of information on sources, identification of responsible agency, and administrative procedures.

Section 51.160 of Subpart I specifies that the plan must stipulate legally enforceable procedures that enable the permitting agency to determine whether the construction or modification of a facility, building, structure, or installation, or combination of these, will result in either a violation of any part of a control strategy or interference with attainment or maintenance of a national standard and, if such violation or interference would occur, the means by which the construction or modification can be prevented. The procedures must identify types and sizes of facilities, buildings, structures or installations which will be subject to review and discuss the basis for determining which facilities will be subject to review. The procedures must provide that owners of facilities, buildings, structures or installations must submit information on the nature and amounts of emissions and on the location, construction and operation of the facility. The procedures must ensure that owners comply with applicable control strategies after permit approval. The procedures must discuss air quality data and modeling requirements on which applications must be based.

Section 51.161 of Subpart I specifies that the permitting agency must provide opportunity for public comment on information submitted by owners and on the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval. Section 51.161 also specifies the minimum requirements for public notice and comment on this information.

Section 51.162 of Subpart I specifies that the responsible agency must be identified in the plan.

Section 51.163 of Subpart I specifies that the plan must include administrative procedures to be followed in determining whether the construction or modification of a facility, building, structure or installation will violate applicable control strategies or interfere with the attainment or maintenance of a national standard.

Subpart L (Legal Authority) specifies identification of legal authority to implement plans and assignment of legal authority to local agencies.

Section 51.230 of Subpart L specifies that each state implementation plan must show that the state has the legal authority to carry out the plan, including the authority to perform the following actions: (i) adopt emission standards and limitations and any other measures necessary for the attainment and maintenance of the national ambient air quality standards; (ii) enforce applicable laws, regulations, and standards, and seek injunctive relief; (iii) obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources; and (iv) prevent construction, modification, or operation of a facility, building, structure, or installation, or combination thereof, which directly or indirectly results or may result in emissions of any air pollutant at any location which will prevent the attainment or maintenance of a national standard.

Section 51.231 of Subpart L requires the identification of legal authority as follows: (i) the provisions of law or regulation which the state determines provide the authorities required under 51.231 must be specifically identified, and copies of such laws or regulations must be submitted with the plan; and (ii) the plan must show that the legal authorities specified in Subpart L are available to the state at the time of submission of the plan.

Purpose: The purpose of the regulation is to provide a streamlined process for permitting electric generating facilities that that participate in a voluntary demand response program such that the emissions from the units in no way endanger the public health. The proposed general permit contains terms and conditions as may be necessary to form the legally enforceable basis for the implementation of all regulatory and statutory requirements applicable to new or modified emissions units that meet the requirements of an electric generating facility as defined in § 10.1-1307.02 B 4 of the Code of Virginia.

Substance: Definitions used in the regulation are identified and general provisions are established that cover the overall basis, applicability, and general requirements of the general permit; circumvention; suspension or revocation; compliance authority; and enforcement of a general permit.

Procedures for obtaining the general permit are described and provide requirements for granting an authorization to operate under the general permit, applications for coverage under the general permit, required information for initial applications, authorization to operate, and transfer of authorization to operate.

General permit terms and conditions for using fuel throughput and hours of operation for compliance demonstration are established including monitoring requirements, operating limits, emissions limits, testing requirements, recordkeeping, and reporting requirements.

Issues: The primary advantage to the public is a streamlined process for permitting the minor source emissions units that participate in a voluntary demand response program. This will ensure that adequate electricity is available to commercial facilities and the citizens of Virginia during critical times when electrical demands may be significant.

The benefit to the department will be a more efficient permitting process for the minor source emissions units that participate in a voluntary demand response program and a reduction in the number of permits that need to be modified or changed due to additions or changes at the facilities that are participating in a voluntary demand response program (i.e., load curtailment, demand response, peak shaving, or like program).

Summary:

Chapters 752 and 855 of the 2009 Acts of Assembly mandate that the board develop a general permit for the construction, installation, and operation of distillate oil, natural gas, liquid propane gas, and biodiesel fired electric generating facilities that participate in a voluntary demand response program (i.e., load curtailment, demand response, peak shaving, or like program) and that qualify as nonmajor facilities under the federal Clean Air Act.

The proposed general permit regulation includes emissions limits for both compression ignition and spark ignition electric generating units and limits for units located in attainment and nonattainment areas. Compliance determinations can be made by either monitoring fuel throughput or by monitoring hours of operation.

The regulation does not require any owner to apply for coverage under the general permit but provides the opportunity for an owner to apply for coverage if the source meets the requirements of the regulation.

CHAPTER 530
ELECTRIC GENERATOR VOLUNTARY DEMAND RESPONSE GENERAL PERMIT

Part I
Definitions

9VAC5-530-10. General.

A. For the purpose of this chapter or any orders issued by the board the words or terms used shall have the meanings given them in 9VAC5-530-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meaning given them by 9VAC5-80-1110 (definitions, Permits for New and Modified Stationary Sources), 9VAC5-10-20 (general definitions, Regulations for the Control and Abatement of Air Pollution), 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to them by recognized authorities, in that order of priority.

9VAC5-530-20. Terms defined.

"Affected unit" means one or more electric generating units subject to the provisions of this chapter.

"Aggregate rated electrical power output" means (i) the sum or total rated electrical power output for all affected units involved in the application or (ii) in nonattainment areas, the sum or total rated electrical output for all electric generating units, permitted or exempt, located at the facility.

"Attainment area" means any area (other than an area identified as a nonattainment area) that meets the national primary or secondary ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.).

"Biodiesel fuel" means a fuel comprised of mono-alkyl esters of long chain fatty acids derived from vegetable or animal fats, designated B100, and meeting the requirements of ASTM D6751-09.

"Biodiesel blends" means a blend of biodiesel and petroleum diesel fuel meeting either the requirements of ASTM D975-10b (blends up to 5.0%) or ASTM D7467-09 (blends between 6.0% and 20% biodiesel) and designated Bxx where xx represents the biodiesel content of the blend, e.g., B20 for a blend of 20% biodiesel and 80% petroleum diesel fuel.

"Compression ignition unit" or "CI unit" means a type of stationary internal combustion engine that is not a spark ignition engine.

"Demand response" means measures aimed at shifting time of use of electricity from peak-use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Demand response actions are typically undertaken by the source owner in response to a request from a utility or electrical grid system operator or in response to market prices.

"Diesel fuel" means any liquid obtained from the distillation of petroleum with a boiling point of approximately 150°C to 360°C and that complies with the specifications for S15 diesel fuel oil as defined by the American Society for Testing and Materials in ASTM D975-10b.

"Electric generating unit" means a stationary internal combustion engine that participates in a nonemergency voluntary demand response program (i.e., load curtailment, demand response, peak shaving or like program).

"Emergency" means a condition that arises from sudden and reasonably unforeseeable events where the primary energy or power source is disrupted or disconnected due to conditions beyond the control of an owner or operator of a source including any of the following:

1. A failure of the electrical grid.

2. On-site disaster or equipment failure.

3. Public service emergencies such as flood, fire, natural disaster, or severe weather conditions.

4. An ISO-declared emergency where an ISO emergency is any of the following:

a. An abnormal system condition requiring manual or automatic action to maintain system frequency, to prevent loss of firm load, equipment damage, or tripping of system elements that could adversely affect the reliability of an electric system or the safety of persons or property.

b. Capacity deficiency or capacity excess conditions.

c. A fuel shortage requiring departure from normal operating procedures in order to minimize the use of such scarce fuel.

d. Abnormal natural events or man-made threats that would require conservative operations to posture the system in a more reliable state.

e. An abnormal event external to the ISO service territory that may require ISO action.

"Emergency generator or generation source" means a stationary internal combustion engine that operates only during an emergency, required maintenance or operability and emissions testing.

"General permit" means, for an electric generating unit or units, the terms and conditions in either Part IV (9VAC5-530-140 et seq.) or Part V (9VAC5-530-220) of this chapter that meet the requirements of Part II (9VAC5-530-30 et seq.) and Part III (9VAC5-530-90 et seq.) of this chapter and issued under the provisions of 9VAC5-80-1250.

"Identical affected units" means electric generating units that have the same make, manufacturer, model, year, size, and fuel specifications.

"Independent system operator" or "ISO" means a person who may receive or has received by transfer pursuant to § 56-576 of the Code of Virginia, any ownership or control of, or any responsibility to operate, all or part of the transmission systems in the Commonwealth.

"Integration operational period" means that period of time beginning with the first time the affected unit is started on-site and ending when the affected unit is fully integrated with the source's electrical system. In no case shall this period exceed 30 days.

"Kilowatt (kW) to brake horsepower (bhp)" means the conversion of 1 kW = 1.341 bhp.

"Load curtailment" means an action similar to demand response, with the specific removal or reduction of electrical loads for a limited period of time from a utility grid system in response to a request from the utility or electrical grid system operator.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act (42 USC § 7401 et seq.) and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II (Permit Procedures) of 9VAC5-80 (Permits for Stationary Sources).

"Manufacturer certified emissions" means the emission levels from a stationary compression ignition engine as identified according to the manufacturers' specifications applicable to that engine's family and model year.

"Model year" means either (i) the calendar year in which the engine was originally produced, or (ii) the annual new model production period of the engine manufacturer if it is different than the calendar year. This must include January 1 of the calendar year for which the model year is named. It may not begin before January 2 of the previous calendar year and it must end by December 31 of the named calendar year. For an engine that is converted to a stationary engine after being placed into service as a nonroad or other nonstationary engine, model year means the calendar year or new model production period in which the engine was originally produced.

"Nonattainment area" means any area that does not meet the national ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.) and listed in 9VAC5-20-204.

"Operation" means the burning of fuel regardless of whether electricity is generated.

"Peak shaving" means measures aimed solely at shifting time of use of electricity from peak use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Peak shaving is typically undertaken at a source owner's discretion in order to reduce maximum electrical usage and, therefore, cost of electrical service to the source owner.

"Reference method" means any method of sampling and analyzing for an air pollutant as described in the following EPA regulations:

1. For ambient air quality standards in 9VAC5-30 (Ambient Air Quality Standards): the applicable appendix of 40 CFR Part 50 or any method that has been designated as a reference method in accordance with 40 CFR Part 53, except that it does not include a method for which a reference designation has been canceled in accordance with 40 CFR 53.11 or 40 CFR 53.16;

2. For emission standards in 9VAC5-40 (Existing Stationary Sources) and 9VAC5-50 (New and Modified Stationary Sources): Appendix M of 40 CFR Part 51 or Appendix A of 40 CFR Part 60; or

3. For emission standards in 9VAC5-60 (Hazardous Air Pollutant Sources): Appendix B of 40 CFR Part 61 or Appendix A of 40 CFR Part 63.

"Spark ignition unit" or "SI unit" means a natural gas or liquefied petroleum gas fueled engine or any other type of engine with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark ignition engines usually use a throttle to regulate intake air flow to control power during normal operation. Dual-fuel engines in which a liquid fuel (typically diesel fuel) is used for compression ignition and gaseous fuel (typically natural gas) is used as the primary fuel at an annual average ratio of less than two parts diesel fuel to 100 parts total fuel on an energy equivalent basis are spark ignition engines.

"Startup" means the date on which each affected unit completes the integration period, unless an extension for start-up notification as stated in 9VAC5-530-210 A 4 or 9VAC5-530-290 A 4 is approved by the department. An extension request must be submitted seven days prior to the end of the 30-day integration operational period.

"Tier 4 engine or equivalent" means a compression ignition electric generating unit that meets Tier 4 standards of 40 CFR Part 1039 or, for engines greater than 10 liters per cylinder, 40 CFR Part 1042, whether by Tier 4 certification or by add-on controls to meet the applicable emission standards for the model year and size of the engine.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

Part II
General Provisions

9VAC5-530-30. Basis.

This general permit is being issued under the authority of § 10.1-1308 of the Code of Virginia and 9VAC5-80-1250.

9VAC5-530-40. Applicability and designation of affected emissions unit.

A. This chapter applies to each affected unit (i) for which construction, modification, or operation is commenced on or after [insert effective date of this chapter], (ii) that does not meet the permit exemption thresholds of 9VAC5-80-1105 C 1 or D 1 and (iii) that meets the requirements stated below:

1. For CI units located in either an attainment or nonattainment area with an aggregate rated electrical power output less than or equal to 58,886 kW (78,966 bhp).

2. For SI units located in an attainment area with an aggregate rated electrical power output less than or equal to 60,970kW (81,761 bhp).

3. For SI units located in a nonattainment area with an aggregate rated electrical power output less than or equal to 37,750 kW (50,623 bhp).

B. This chapter applies throughout the Commonwealth of Virginia.

C. The following affected units shall not be eligible for this general permit:

1. Any electric generating unit that is subject to the provisions of the major new source review program as defined in this chapter.

2. Any electric generating unit that is an emergency generator.

9VAC5-530-50. General.

A. Any owner requesting authority to operate an affected unit shall comply with the requirements of 9VAC5-80 (Permits for Stationary Sources) and register with the department as required under 9VAC5-20-160. Not all parts of the general permit will apply to every owner. The determination of which parts apply will be based on where the unit is located and method of compliance determination. Parts I, II, and III of this chapter apply to all owners. Part IV of this chapter applies to affected units using fuel throughput for compliance determination. Part V of this chapter applies to affected units using hours of operation for compliance determination.

B. The existence of a permit under this chapter shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances, and orders of the governmental entities having jurisdiction.

C. Upon request of the department, the owner shall reduce the level of operation or shut down an affected unit as necessary to avoid violating any primary ambient air quality standard and shall not return to normal operation until such time as the ambient air quality standard will not be violated.

D. This general permit to construct or modify each affected unit shall become invalid, unless an extension is granted by the department, if:

1. A program of continuous construction or modification is not commenced within 18 months from the date that this general permit is issued to the owner; or

2. A program of construction or modification is discontinued for a period of 18 months or more, or is not completed within a reasonable time, except for a department-approved period between phases of a phased construction project.

E. At all times, including periods of startup, shutdown, and malfunction, the owner shall, to the extent practicable, maintain and operate the affected unit, including associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions.

F. The owner shall develop a maintenance schedule and maintain records of all scheduled and nonscheduled maintenance.

G. The owner shall have available written operating procedures for equipment. These procedures shall be based on the manufacturer's recommendations, at a minimum.

H. The owner shall train operators in the proper operation of all such equipment and familiarize the operators with the written operating procedures prior to their first operation of such equipment and shall maintain records of the training provided including the names of trainees, the date of training, and the nature of the training.

I. Records of maintenance and training shall be maintained on-site for a period of five years and shall be made available to department personnel upon request. If the site is remotely operated, the maintenance and training records may be kept off-site but shall be made available to the department within three business days of a department request.

J. The owner shall keep a copy of this general permit on the premises of the affected unit to which it applies.

9VAC5-530-60. Circumvention, suspension, or revocation.

A. No owner shall cause or permit the installation or use of any device or any means that, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants that would otherwise violate this chapter.

B. This general permit may be suspended or revoked if the owner:

1. Knowingly makes material misstatements in the general permit application or any amendments to it.

2. Fails to comply with the conditions of this general permit.

3. Fails to comply with any emission standards applicable to an affected unit.

4. Causes emissions from the stationary source that result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard.

5. Fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, or applicable regulations of the board in effect at the time an application for this general permit is submitted.

9VAC5-530-70. Compliance.

A. Whenever it is necessary for the purpose of the regulations of the board, the board or an agent authorized by the board may at reasonable times enter an establishment or upon property, public or private, for the purpose of obtaining information or conducting surveys or investigations as authorized by § 10.1-1315 or 46.2-1187.1 of the Code of Virginia.

B. The time for inspection shall be deemed reasonable during regular business hours or whenever the source is in operation. Nothing contained herein shall make an inspection time unreasonable during an emergency.

C. Upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

1. Enter upon the premises where the source is located or emissions-related activity is conducted or where records must be kept under the terms and conditions of this general permit.

2. Have access to and copy at reasonable times any records that must be kept under the terms and conditions of this general permit.

3. Inspect at reasonable times any facilities, equipment (including monitoring equipment), practices, or operations regulated or required under this general permit.

4. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with this general permit or applicable requirements.

9VAC5-530-80. Enforcement of a general permit.

A. The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Virginia Air Pollution Control Law, failure to comply with any term or condition of the general permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. An owner who (i) violates or fails, neglects, or refuses to obey any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition; (ii) knowingly makes any false statement, representation or certification in any form, in any notice or report required by a permit; or (iii) knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of §§ 10.1-1307, 10.1-1309, 10.1-1316, 10.1-1318, and 10.1-1320 of the Virginia Air Pollution Control Law.

B. Violation of this permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5-170 (Regulation for General Administration) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311, and 10.1-1316 of the Virginia Air Pollution Control Law.

C. If any condition, requirement, or portion of this general permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of this general permit.

D. The owner shall comply with all applicable conditions of this general permit. Any noncompliance with this general permit constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) suspension or revocation of the authorization to operate under this general permit.

E. It shall not be a defense for an owner in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this general permit.

F. The authorization to operate under this general permit may be suspended or revoked for cause as specified in 9VAC5-530-80. The filing by an owner of a (i) request for reauthorization to operate under this general permit or (ii) notification of termination, planned changes, or anticipated noncompliance does not stay any condition of this general permit.

G. This general permit does not convey any property rights of any sort or any exclusive privilege.

H. Within 30 days of notification, the owner shall furnish to the department any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under this general permit or to determine compliance with this general permit. Upon request, the owner shall also furnish to the department copies of records required to be kept by this general permit and, for information claimed to be confidential, the owner shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

Part III
General Permit Administrative Procedures

9VAC5-530-90. Requirements for granting an authorization to operate under the general permit.

A. The department may grant an authorization to operate under the general permit for an affected unit that meets the applicability criteria in 9VAC5-530-40 and the operating limitations in 9VAC5-530-170 or 9VAC5-530-250.

B. The general permit will be issued in accordance with § 2.2-4006 A 8 of the Administrative Process Act.

9VAC5-530-100. Applications for coverage under the general permit.

A. The application for an affected unit shall meet the requirements of this chapter and include all information necessary to determine qualification for and to assure compliance with the general permit.

B. Any application form, report, compliance certification, or other document required to be submitted to the department under this chapter shall meet the requirements of 9VAC5-20-230.

C. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information.

9VAC5-530-110. Required information for initial applications.

A. The department will make application forms available to applicants. The information required by this section shall be determined and submitted according to procedures and methods acceptable to the department.

B. Each initial application for coverage under the general permit shall include, but not be limited to, the following:

1. Information specified in the appropriate air permit application form for an affected unit as determined by the department.

2. A document certification signed by a responsible official.

9VAC5-530-120. Granting an authorization to operate under the general permit.

A. The department may grant authorization to operate under the conditions and terms of the general permit to sources that meet the applicability criteria set forth in 9VAC5-530-40.

B. Granting an authorization to operate under the general permit to an affected unit covered by the general permit is not subject to the public participation procedures of 9VAC5-80-1170.

9VAC5-530-130. Transfer of authorizations to operate under the general permit.

A. No person shall transfer an authorization to operate under the general permit from one affected unit to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of an affected unit, the new owner shall comply with any permit issued or authorization to operate under the general permit granted to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of an affected unit, the owner shall comply with any permit issued or authorization to operate under the general permit granted under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

Part IV
General Permit Terms and Conditions for an Affected Unit Using Fuel Throughput for Compliance Demonstration

9VAC5-530-140. General permit.

A. Any owner whose application is approved by the director shall receive the following general permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

B. In compliance with the provisions of the Virginia Air Pollution Control Law and regulations adopted pursuant to it, owners of affected units are authorized to operate under the authority of this general permit, except those where board regulations or policies prohibit such operation.

C. The authorization to operate under this general permit shall be in accordance with the cover letter to this general permit, 9VAC5-530-150 (General terms and conditions), 9VAC5-530-160 (Monitoring requirements) 9VAC5-530-170 (Operating limits), 9VAC5-530-180 (Emissions limits), 9VAC5-530-190 (Testing requirements), 9VAC5-530-200 (Recordkeeping requirements), and 9VAC5-530-210 (Reporting requirements).

9VAC5-530-150. General terms and conditions.

A. The owner is authorized to operate an affected unit located within the boundaries of the Commonwealth of Virginia in accordance with the approved general permit application and conditions of this general permit except where board regulations or policies prohibit such activities.

B. The owner shall comply with the terms and conditions of this general permit prior to commencing any physical or operational change or activity that will result in making the source subject to the new source review program.

9VAC5-530-160. Monitoring requirements.

A. The owner shall install and use a fuel flow meter to monitor the fuel throughput for each affected unit, calculated monthly as the sum of each consecutive 12-month period.

B. Each fuel flow meter shall be installed, maintained, calibrated, and operated in accordance with approved procedures which shall include, as a minimum, the manufacturer's written requirements or recommendations.

C. The fuel flow meter used to continuously measure the fuel throughput for each affected unit shall be observed by the owner with a frequency of not less than once per month. The owner shall keep a log of the observations from the fuel flow meter.

9VAC5-530-170. Operating limits.

A. The approved fuels for each CI affected unit are diesel fuel, biodiesel fuel, and biodiesel blends. These fuels shall meet the following specifications:

1. Diesel fuel that meets the ASTM D975-10b specification for S15 diesel fuel oil; maximum sulfur content per shipment, 0.0015%.

2. Biodiesel fuel that meets ASTM specification D6751-09; maximum sulfur content per shipment, 0.0015%.

B. The approved fuels for each SI affected unit are natural gas and liquid petroleum gas (LPG). These fuels shall meet the following specifications:

1. Natural gas with a minimum heat content of 1,000 Btu/scf HHV as determined by ASTM D1826-94 (Reapproved 2010), ASTM D4809-09a, or an equivalent method approved by the department.

2. LPG, including butane and propane, that meets ASTM specification D1835-05, or an equivalent method approved by the department.

C. The combined CI affected unit or units located in either an attainment or nonattainment area, shall consume no more than 502,766 gallons of diesel fuel or 554,230 gallons of biodiesel fuel per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of diesel oil and biodiesel, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (140,000 Btu/gal) + B x (127,000 Btu/gal) ≤ 70,387 x 10⁶ Btu/yr

where:

A = Number of gallons of diesel fuel burned during any consecutive 12-month period.

B = Number of gallons of biodiesel burned during any consecutive 12-month period.

D. The combined SI affected unit or units located in an attainment area shall consume no more than 775,300 gallons of LPG or 72.88 x 10⁶ cubic feet of natural gas per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of natural gas and LPG, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (1,000 Btu/ft³) + B x (94,000 Btu/gal) ≤ 72,878 x 10⁶ Btu/yr

where:

A = Number of cubic feet of natural gas burned during any consecutive 12-month period.

B = Number of gallons of LPG burned during any consecutive 12-month period.

E. The combined SI affected unit or units located in a nonattainment area shall consume no more than 480,032 gallons of LPG or 45.12 x 10⁶ cubic feet of natural gas per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of natural gas and LPG, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (1,000 Btu/ft³) + B x (94,000 Btu/gal) ≤ 45,123 x 10⁶ Btu/yr

where:

A = Number of cubic feet of natural gas burned during any consecutive 12-month period.

B = Number of gallons of LPG burned during any consecutive 12-month period.

F. For affected units using diesel fuel or biodiesel fuel, the owner shall obtain a certification from the fuel supplier with each shipment of diesel fuel or biodiesel fuel. Each fuel supplier certification shall include the following:

1. The name of the fuel supplier;

2. The date on which the diesel fuel or biodiesel was received;

3. The quantity of diesel fuel or biodiesel delivered in the shipment;

4. A statement that the diesel fuel complies with the American Society for Testing and Materials specifications (ASTM D975-10b);

5. A statement that the biodiesel fuel complies with the American Society for Testing and Materials specifications (ASTM D6751-09) for S15 diesel fuel oil; and

6. The sulfur content of the diesel fuel or biodiesel fuel.