TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-130, Rules and Regulations Governing Laboratory Fees for Services Rendered or Performed, and determined that this regulation should be retained as is. The board is publishing its report of findings dated June 14, 2022, to support this decision.
The regulation is necessary for the protection of public health, safety, and welfare in that it provides major support to and a source of funding for the operation of the Animal Health Laboratory System. The Animal Health Laboratory System provides frontline monitoring in detecting and preventing animal diseases that could impact public health. Consumers are also protected by the testing of various products, including milk, meat, cheese, ice cream, and water. The regulation is clearly written and easily understandable.
The board is recommending that the regulation should stay in effect without change and is effective in its current format. No changes to department or industry practices have occurred that would necessitate any modifications.
There is a continuing need for this regulation in order to support the operation of the Animal Health Laboratory System. There have been no complaints from the public concerning the regulation. The regulation is necessarily uncomplicated. There is no overlap with federal or other state law or regulations. Technology, economic conditions, or other factors have not impacted the need for this regulation, but in fact make the existence of this regulation even more necessary. Economic conditions have resulted in the Animal Health Laboratory System being more dependent on fee revenue to provide the current technology needed to offer services to clients. The primary effect on small business is a beneficial one, as veterinary practices, agricultural businesses, and livestock or other animal owners in the Commonwealth are able to obtain laboratory services near their place of operation and at an affordable price.
Contact Information: Jessica Walters, Program Manager, Office of Laboratory Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-9202.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-205, Rules and Regulations Pertaining to Shooting Enclosures, and determined that this regulation should be repealed. The board is publishing its report of findings dated June 14, 2022, to support this decision.
The regulation is clearly written and easily understandable. However, the regulation is no longer necessary since the last remaining shooting enclosure closed in 2017, and the board does not have authority to license new shooting enclosures. Therefore, the board has decided to repeal this regulation.
Contact Information: Carolynn Bissett, Program Manager, Office of Veterinary Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-4560.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-220, Virginia Horse Breeder Incentive Program, and determined that this regulation should be retained as is. The board is publishing its report of findings dated June 14, 2022, to support this decision.
This regulation is necessary for the protection of public welfare in that it establishes the necessary rules for the administration of the Virginia Horse Breeder Incentive Program, which encourages the growth of the horse breeding industry in Virginia. The regulation is clearly written and easily understandable. The board recommends that the regulation stay in effect without change because the growth of the horse breeding industry in Virginia, which has a positive impact on Virginia's economy.
The board has determined that there is a continuing need for this regulation in order to encourage the growth of the Virginia horse breeding industry, which includes many small businesses. There have been no complaints from the public concerning the regulation. The regulation is not unnecessarily complex. There is no overlap with federal or state law or regulations. The board has determined that no changes have occurred in the area affected by this regulation since the last periodic review that would make it necessary to amend or repeal the regulation. The board has determined that that current version of the regulation is consistent with current industry practices and is the least burdensome and least intrusive alternative.
Contact Information: Heather Wheeler, Business and Marketing Specialist, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-8993.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-230, Rules and Regulations Applicable to Controlled Atmosphere (CA) Apples, and determined that this regulation should be retained as is. The board is publishing its report of findings dated June 15, 2022, to support this decision.
This regulation benefits welfare of citizens through availability of better quality apples throughout the year. The regulation is clearly written and easily understandable by the regulated industry.
The board recommends that this regulation stay in effect without change. The board has determined that this regulation continues to be necessary. The board has not received any complaints or comments regarding the regulation. The board has determined that this regulation is not unnecessarily complex and that the complexity of this regulation is not such that it would have an economic impact on small businesses. This regulation does not overlap, duplicate, or conflict with federal or state law or regulation. The board last conducted a periodic review of the regulation in 2016, and the board has determined that no changes in technology, economic conditions, or other factors have occurred that necessitate amendments to the regulation. The board continues to believe the current regulation is the least burdensome and intrusive alternative for the required regulation of the apple industry.
Contact Information: Leon White, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3548.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-300, Rules and Regulations for the Enforcement of the Virginia Seed Potato Standards, and determined that this regulation should be retained as is. The board is publishing its report of findings dated June 15, 2022, to support this decision.
This regulation protects the economic welfare of potato growers by ensuring seed potatoes entering the state and utilized by growers for commercial production comply with official standards for approved seed potatoes. The regulation is clearly written and easily understood by the regulated industry and consumers.
The board recommends that this regulation stay in effect without change because the regulation is necessary to support the economic welfare of potato growers. The board has determined that this regulation continues to be necessary. The board has not received any complaints or comments regarding the regulation. The board has determined that this regulation is not unnecessarily complex and that the complexity of this regulation is not such that it would have an economic impact on small businesses. This regulation does not overlap, duplicate, or conflict with federal or state law or regulation. The board last conducted a periodic review of the regulation in 2016 and has determined that no changes in technology, economic conditions, or other factors have occurred that necessitate amendments to the regulation. The board continues to believe the current regulation is the least burdensome and intrusive alternative for the required regulation of the potato industry.
Contact Information: Leon White, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3548.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-380, Rules and Regulations for the Enforcement of the Virginia Dealers in Agricultural Products Law, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 18, 2022, to support this decision.
This regulation is necessary to support the economic welfare of producers of agricultural produce and is clearly written and easily understandable. The board recommends that the regulation stay in effect without change.
The provisions of this regulation establish notice and written receipt requirements and are not unnecessarily burdensome. The board has determined that this regulation should be retained in order to continue to protect and support the economic welfare of producers of agricultural produce. The board has not received any complaints or comments from the public concerning this regulation. The board has determined that this regulation is not unnecessarily complex and that the complexity of this regulation is not such that it would have an economic impact on small businesses. The federal Perishable Agricultural Commodities Act (the Act) (7 USC § 499) requires any person who buys or sells more than 2,000 pounds of fresh or frozen fruits and vegetables in any given day to be licensed. The regulation does not appear to overlap, duplicate, or conflict with the requirements of the Act or with any other federal or state law or regulation. The board has determined that no change in the affected industry has occurred subsequent to the board's previous periodic review of this regulation that would necessitate the amendment or repeal of this regulation.
Contact Information: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-520, Rules and Regulations Governing Testing of Milk for Milkfat, Protein, and Lactose Content by Automated Instrument Methods, and determined that this regulation should be retained as is. The board is publishing its report of findings dated June 14, 2022, to support this decision.
Section 3.2-5224 of the Code of Virginia states that no test or contrivance other than the Babcock test method or other centrifugal machines may be used unless approved by the board. The absence of other methods approved by the board would force the dairy industry to use only the Babcock test method for determining the composition of milk or cream as a basis for payment in buying or selling milk or other fluid dairy products. The regulation provides for alternative testing methods for determining the composition of milk or other fluid dairy products. Automated light scattering methods, infrared milk analyzer methods, and numerous other methods detailed in the Official Methods of Analysis of the Association of Official Analytical Chemists are provided for by the regulation. Therefore, the regulation is necessary for the protection of public health, safety, and welfare as it allows for approval of the most cost-effective methods of analysis for milk and other fluid dairy products intended for consumption by Virginia's citizens and helps to ensure that an affordable milk supply is available to the public. The regulation is clearly written and easily understandable. The agency is recommending that the regulation should stay in effect without change. Additionally, there have been no changes to agency or industry practices to necessitate any modifications.
The agency has not received any complaints or comments concerning the regulation from the public. The regulation is simple and easily understood. The regulation is not mandated by any federal law or regulation, but it is mandated by and expands upon state law. It does not conflict with any federal or other state laws or regulations. The most current testing method technologies are supported by this regulation. The economic impact of the regulation on small businesses is favorable in that small laboratory equipment companies can offer for sale alternative testing equipment that meets regulatory guidelines. In addition, the regulation is effective in providing alternative, cost-effective testing methods for determining the composition of milk or other fluid dairy products. Therefore, the board has determined that the regulation should be retained as-is.
Contact Information: Ryan Davis, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8899.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Agriculture and Consumer Services conducted a periodic review and a small business impact review of 2VAC5-690, Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 18, 2022, to support this decision.
This regulation is necessary for the protection of public health, safety, and welfare as it assists in minimizing human exposure during container handling and protecting the environment from potential contamination resulting from accidental pesticide discharges. The board has determined that this regulation is clearly written and easily understood by the regulated industry.
The board is recommending the regulation stay in effect without change. The current regulation has been found to be sufficient to minimize human exposure during container handling and protect the environment from potential contamination resulting from accidental pesticide discharges.
This regulation establishes (i) standards for container design and residue removal in nonrefillable pesticide containers, standards for container design in refillable pesticide containers, standards for repackaging pesticide products into refillable containers, and pesticide containment structures; and (ii) recordkeeping requirements. Individuals, businesses, or other entities affected by the regulation may include pesticide registrants, retailers, distributors, commercial applicators, custom blenders, and endusers. Virginia's regulation is equivalent to the federal regulations that are currently in place and allows more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. No complaints or comments concerning the regulation have been received from the public. This regulation became effective in January 2014, and no conditions or factors have changed since this time that would necessitate any revisions to this regulation.
Approximately 50 facilities are required to comply with the regulation. The vast majority of these facilities are small businesses. As the regulation is equivalent to the federal regulation, this regulation does not prescribe requirements for regulants with which they would not have to comply were the regulation repealed. Amending the current regulation to provide exemptions from its provisions or less stringent requirements for certain regulants would not provide protection for human health and the environment.
Contact Information: Liza Fleeson Trossbach, Program Manager, Office of Pesticide Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559.
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TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the State Air Pollution Control Board conducted a periodic review and a small business impact review of 9VAC5-40, Existing Stationary Sources, and determined that this regulation should be amended. The board is publishing its report of findings dated July 14, 2022, to support this decision.
For all articles:
The regulation is necessary for the protection of public health and welfare as it is needed to meet the primary goals of the federal Clean Air Act (CAA), which are the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), the prevention of significant deterioration (PSD) of air quality in areas cleaner than the NAAQS, and the prevention visibility impairment in Class I areas.
The NAAQS establish the maximum limits of pollutants that are permitted in the ambient air in order to protect public health and welfare. The Environmental Protection Agency (EPA) requires that each state submit a state implementation plan (SIP), including any laws and regulations necessary to enforce the plan, which shows how the air pollution concentrations will be reduced to levels at or below these standards (attainment). Once the pollution levels are within the standards, the SIP must also demonstrate how the state will maintain the air pollution concentrations at the reduced levels (maintenance).
An SIP is the key to the state's air quality programs. The CAA is specific concerning the elements required for an acceptable SIP. If a state does not prepare such a plan, or EPA does not approve a submitted plan, then EPA is empowered to take the necessary actions to attain and maintain the air quality standards, that is, it would have to promulgate and implement an air quality plan for that state. EPA is also, by law, required to impose sanctions in cases where there is no approved plan or the plan is not being implemented; the sanctions consist of loss of federal funds for highways and other projects or more restrictive requirements for new industry. Generally, the plan is revised as needed based upon changes in the CAA and its requirements.
The basic approach to developing an SIP is to examine air quality across the state, delineate areas where air quality needs improvement, determine the degree of improvement necessary, inventory the sources contributing to the problem, develop a control strategy to reduce emissions from contributing sources enough to bring about attainment of the air quality standards, implement the strategy, and take the steps necessary to ensure that the air quality standards are not violated in the future.
The heart of the SIP is the control strategy. The control strategy describes the emission reduction measures to be used by the state to attain and maintain the air quality standards. There are three basic types of measures. Stationary source control measures limit emissions primarily from commercial or industrial facilities and operations and include emission limits, control technology requirements, preconstruction permit programs for new industry and expansions, and source-specific control requirements. Stationary source control measures also include area source control measures that are directed at small businesses and consumer activities. Mobile source control measures are directed at tailpipe and other emissions primarily from motor vehicles and include Federal Motor Vehicle Emission Standards, fuel volatility limits, and inspection and maintenance programs. Transportation control measures limit the location and use of motor vehicles and include carpools, special bus lanes, rapid transit systems, commuter park and ride lots, signal system improvements, and many others.
Federal guidance on state approaches to the inclusion of control measures in the SIP has varied considerably over the years, ranging from very general in the early years of the CAA to very specific in more recent years. Many regulatory requirements were adopted in the 1970s when no detailed guidance existed. The legally binding federal mandate for these regulations is general, not specific, consisting of the CAA's broad-based directive to states to attain and maintain the air quality standards. However, the CAA Amendments of 1990, along with current EPA regulations and policy and ongoing updates, has become much more specific, thereby removing much state discretion to craft their own air quality control programs.
Generally, a SIP is revised as needed based upon changes in air quality or statutory requirements. For the most part the SIP has worked and the standards have been attained for most pollutants in most areas. Therefore, these specific SIP provisions, including implementation of this regulation, are necessary for the protection of public health and welfare.
Additionally for Part II, Articles 5, 6, 11, 23 through 43, 47, 48, 51, 53, and 56 through 59:
Generally, an SIP is revised, as needed, based upon changes in air quality or statutory requirements. For the most part the SIP has worked, and the standards have been attained for most pollutants in most areas. However, attainment of NAAQS for one pollutant – ozone – has proven problematic. While ozone is needed at the earth's outer atmospheric layer to shield out harmful rays from the sun, excess concentrations at the surface have an adverse effect on human health and welfare. Ozone is formed by a chemical reaction between volatile organic compounds (VOCs), nitrogen oxides (NOX), and sunlight. When VOC and NOX emissions from mobile sources and stationary sources are reduced, ozone is reduced.
Once a nonattainment area is defined, each state is obligated to submit an SIP demonstrating how it will attain the air quality standards in each nonattainment area. First, the CAA required that certain specific control measures and other requirements be adopted and included in the SIP; a list of those requirements that necessitated the adoption of state regulations is provided in this result of findings. In addition, the state had to demonstrate that it would achieve a VOC emission reduction of 15%. Finally, the SIP had to include an attainment demonstration by photochemical modeling (including annual emission reductions of 3.0% from 1996 to 1999) in addition to the 15% emission reduction demonstration. In cases where the specific control measures shown in this report of findings were inadequate to achieve the emission reductions or attain the air quality standard, the state was obligated to adopt other control measures as necessary to achieve this end.
For all areas in Virginia:
1. Correct existing VOC regulatory program (controls on certain sources identified in EPA control techniques guidelines).
2. Requirement for annual statements of emissions from industries.
3. Permit program for new industry and expansions (with variable major source definition, variable offset ratio for addition of new pollution, and special requirements for expansions to existing industry in serious areas).
4. Procedures to determine if systems level highway plans and other federally financed projects are in conformity with air quality plans.
For all nonattainment areas classified as "moderate" and above:
1. Requirement for controls for all major (100 tons per year) VOC sources.
2. Requirement for vapor recovery controls for emissions from filling vehicles with gasoline (stage II).
3. Requirement for controls for all major (100 tons per year) NOX sources.
4. Case-by-case control technique determinations for all major VOC and NOX sources not covered by a EPA control technique guideline.
Therefore, these specific SIP provisions, including implementation of this regulation, are necessary for the protection of public health and welfare.
For Part II, Articles 21, 43, 43.1, 45, 46, 54, and 55:
Section 111(d) of the federal CAA addresses pollutants emitted by specific categories of sources that may reasonably anticipated to endanger public health and welfare. Like a § 110 SIP, a state's § 111(d) plan is designed to control emissions from these specific source categories in such a way as to protect public health and welfare.
As discussed in this report of findings, emissions from landfills and solid waste incinerators are considered to be "designated" pollutants under §§ 111(d) and 129 of the CAA. Designated pollutant controls are critical for two reasons. First, only a limited number of air pollutants potentially harmful to human health are regulated at the federal level. Second, health risks from small exposures to designated air pollutants can be high, depending on the substances involved. Landfill emissions include non-methane organic compounds, which contribute to the formation of ozone, and methane, which is a powerful greenhouse gas. Solid waste incinerator emissions consist of particulate matter, carbon monoxide, dioxin/furan, and other substances known or suspected of causing cancer, nervous system damage, developmental abnormalities, reproductive impairment, immune suppression, liver dysfunction, hormone imbalance, and other serious health effects. Control of such emissions will reduce and prevent such serious health effects. Therefore, implementation of this regulation is necessary for the protection of public health and welfare.
For Part II, Article 52:
Best available retrofit technology (BART) is required for any BART-eligible source that emits any air pollutant that may reasonably be anticipated to cause or contribute to visibility impairment in any Class I area. Accordingly, for stationary sources meeting these criteria, states must address the BART requirement when developing regional haze SIPs. Therefore, these specific SIP provisions, including implementation of this regulation, are necessary for the protection of public health and welfare.
All provisions in summary:
The regulation has been effective in protecting public health and welfare with the least possible cost and intrusiveness to the citizens and businesses of the Commonwealth, ensuring that owners comply with air pollution emission limits and control technology requirements in order to meet federal health and welfare based standards. The specific pollutants being effectively controlled under this regulation are VOCs; particulate matter; SO2; NOX; hydrogen sulfide; sulfuric acid; total reduced sulfur; visible emissions; fugitive dust/emissions; odor-causing emissions; § 111(d)-designated pollutants, including carbon monoxide, cadmium, lead, mercury, hydrogen chloride, dioxins, and furans; and visibility-impairing pollutants, including particulate matter, SO2, NOX, VOCs, and ammonia.
The board has determined that this regulation is clearly written and easily understandable by the individuals and entities affected. The regulation is written so as to permit only one reasonable interpretation, to adequately identify the affected entity, and, insofar as possible, in nontechnical language.
Except as otherwise noted, this regulation satisfies the provisions of the law and legally binding state and federal requirements and is effective in meeting its goals; therefore, the majority of the regulation is being retained without amendment.
Based on public comment, it has been determined that 9VAC5-40-50 and potentially other similar sections should be amended to allow the use of electronic signature for certain submittals.
In order to determine the ongoing applicability of the regulation, a review of the Comprehensive Environmental Data System (CEDS) was made. CEDS is Virginia's air regulatory registration database. Facilities must register in this database all units to which a regulation of the board applies. This review revealed that two facility types covered by this regulation no longer operate in the state: petroleum refinery operations and large appliance coating application systems. Therefore, it is recommended that Article 11, Emission Standards for Petroleum Refinery Operations (9VAC5-40-1340 et seq.), and Article 26, Emission Standards for Large Appliance Coating Application Systems (9VAC5-40-3560 et seq.), be repealed.
Additionally, it is recommended that Article 41, Emission Standards for Mobile Sources (9VAC5-40-5650 et seq.), be repealed. Since Article 41 was originally adopted, important changes have been made to federal and state law that have resulted in significantly better control of the emissions than this regulation was designed to limit. Federal motor vehicle emission standards have become increasingly stringent over the last 30 years, resulting in large reductions in air pollution. Additionally, most motor vehicles in northern Virginia are subject to the inspection and maintenance (I/M) program, which provides a much higher level of stringency for ozone pollution control than the level provided by the idling provision in Article 41. Idling issues are most effectively addressed by localities, which are better able to implement and enforce that type of local, intermittent problem, via local ordinance as enabled by § 46.2-1224.1 of the Code of Virginia. The remainder of the regulation is accomplished through statewide safety inspections carried out by the State Police through § 46.2-1048 of the Code of Virginia.
With the exceptions noted, this regulation continues to be needed. The regulation provides sources with the most cost-effective means of fulfilling ongoing state and federal requirements that protect air quality.
No comments were received that indicate a need to repeal the regulation; one comment was received that indicates some revisions to address the concept of "postmarking" certain submittals was received.
The level of complexity of the regulation is appropriate to ensure that the regulated entities are able to meet their legal mandates as efficiently and cost-effectively as possible.
The regulation does not overlap, duplicate, or conflict with any state law or other state regulation, with the exception of Article 41, which in large part duplicates existing code. The regulation last underwent periodic review in 2018.
Over time, technological improvements make it generally less expensive to characterize, measure, and mitigate the regulated pollutants that contribute to poor air quality. This regulation continues to provide the most efficient and cost-effective means to determine the level and impact of excess emissions and to control those excess emissions.
The board, through examination of the regulation and relevant public comments, has determined that the regulatory requirements minimize the economic impact of the emission control regulation on small businesses and thereby minimize the impact on existing and potential Virginia employers and their ability to maintain and increase the number of jobs in the Commonwealth.
Contact Information: Karen G. Sabasteanski, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 659-1973.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the State Air Pollution Control Board conducted a periodic review and a small business impact review of 9VAC5-45, Consumer and Commercial Products, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 14, 2022, to support this decision.
The regulation is necessary for the protection of public health and welfare, as it is needed to meet the primary goals of the Clean Air Act (CAA), which are the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) and the prevention of significant deterioration of air quality in areas cleaner than the NAAQS.
The NAAQS, developed and promulgated by the U.S. Environmental Protection Agency (EPA), establish the maximum limits of pollutants that are permitted in the ambient air in order to protect public health and welfare. EPA requires that each state submit a state implementation plan (SIP), including any laws and regulations necessary to enforce the plan, that shows how the air pollution concentrations will be reduced to levels at or below these standards (attainment). Once the pollution levels are within the standards, the SIP must also demonstrate how the state will maintain the air pollution concentrations at the reduced levels (maintenance).
An SIP is the key to the state's air quality programs. The CAA is specific concerning the elements required for an acceptable SIP. If a state does not prepare such a plan, or EPA does not approve a submitted plan, then EPA is empowered to take the necessary actions to attain and maintain the air quality standards, that is, it would have to promulgate and implement an air quality plan for that state. EPA is also, by law, required to impose sanctions in cases where there is no approved plan or the plan is not being implemented; the sanctions consist of loss of federal funds for highways and other projects or more restrictive requirements for new industry. Generally, the plan is revised as needed based upon changes in the CAA and its requirements.
The basic approach to developing an SIP is to examine air quality across the state, delineate areas where air quality needs improvement, determine the degree of improvement necessary, inventory the sources contributing to the problem, develop a control strategy to reduce emissions from contributing sources enough to bring about attainment of the air quality standards, implement the strategy, and take the steps necessary to ensure that the air quality standards are not violated in the future.
The heart of the SIP is the control strategy. The control strategy describes the emission reduction measures to be used by the state to attain and maintain the air quality standards. There are three basic types of measures: stationary source control measures, mobile source control measures, and transportation source control measures. Stationary source control measures limit emissions primarily from commercial or industrial facilities and operations and include emission limits, control technology requirements, preconstruction permit programs for new industry and expansions, and source-specific control requirements. Stationary source control measures also include area source control measures that are directed at small businesses and consumer activities. Mobile source control measures are directed at tailpipe and other emissions primarily from motor vehicles and include Federal Motor Vehicle Emission Standards, fuel volatility limits, and inspection and maintenance programs. Transportation control measures limit the location and use of motor vehicles and include carpools, special bus lanes, rapid transit systems, commuter park and ride lots, signal system improvements, and many others.
Federal guidance on state approach to the inclusion of control measures in the SIP has varied considerably over the years, ranging from very general in the early years of the CAA to very specific in more recent years. Many regulatory requirements were adopted in the 1970s when no detailed guidance existed. The legally binding federal mandate for these regulations is general, not specific, consisting of the Clean Air Act's broad-based directive to states to attain and maintain the air quality standards. However, in recent years, the CAA, along with EPA regulations and policy, has become much more specific, thereby removing much state discretion to craft air quality control programs.
Generally, an SIP is revised as needed based upon changes in air quality or statutory requirements. For the most part the SIP has worked, and the standards have been attained for most pollutants in most areas. However, attainment of NAAQS for one pollutant – ozone – has proven problematic. While ozone is needed at the earth's outer atmospheric layer to shield out harmful rays from the sun, excess concentrations at the surface have an adverse effect on human health and welfare. Ozone is formed by a chemical reaction between volatile organic compounds (VOCs), nitrogen oxides (NOX), and sunlight. When VOC and NOX emissions from mobile sources and stationary sources are reduced, ozone is reduced.
Once a nonattainment area is defined, each state is obligated to submit a SIP demonstrating how it will attain the air quality standards in each nonattainment area. First, the CAA requires that certain specific control measures and other requirements be adopted and included in the SIP; a list of those requirements that necessitated the adoption of state regulations is provided below. In addition, the state had to demonstrate that it would achieve a VOC emission reduction of 15%. Finally, the SIP had to include an attainment demonstration by photochemical modeling (including annual emission reductions of 3.0% from 1996 to 1999) in addition to the 15% emission reduction demonstration. In cases where the specific control measures shown in this report of findings were inadequate to achieve the emission reductions or attain the air quality standard, the state was obligated to adopt other control measures as necessary to achieve this end.
For all areas in Virginia:
1. Correct existing VOC regulatory program (controls on certain sources identified in EPA control technology guidelines).
2. Requirement for annual statements of emissions from industries.
3. Permit program for new industry and expansions (with variable major source definition, variable offset ratio for addition of new pollution, and special requirements for expansions to existing industry in serious areas).
4. Procedures to determine if systems level highway plans and other federally financed projects are in conformity with air quality plans.
For all nonattainment areas classified as "moderate" and above:
1. Requirement for controls for all major (100 tons per year) VOC sources.
2. Requirement for vapor recovery controls for emissions from filling vehicles with gasoline (stage II).
3. Requirement for controls for all major (100 tons per year) NOX sources.
4. Case-by-case control technology determinations for all major VOC and NOX sources not covered by an EPA control technology guideline.
Therefore, these specific SIP provisions, including implementation of the compliance, testing, monitoring, and recordkeeping provisions of this regulation that are generally applicable to all existing stationary sources in the Commonwealth are necessary for the protection of public health and welfare.
In summary, the regulation has been effective in protecting public health and welfare with the least possible cost and intrusiveness to the citizens and businesses of the Commonwealth, ensuring that owners comply with air pollution emission limits and control technology requirements in order to prohibit emissions that would contribute to nonattainment of the national air quality standards or interfere with the maintenance of those standards. The specific pollutant being effectively controlled under this regulation is one of the ozone-precursors, volatile organic compounds.
The board has determined that this regulation is clearly written and easily understandable by the individuals and entities affected. The regulation is written so as to permit only one reasonable interpretation, to adequately identify the affected entity, and, insofar as possible, in nontechnical language.
This regulation satisfies the provisions of the law and legally binding state and federal requirements and is effective in meeting its goals; therefore, the regulation is being retained without amendment.
This regulation continues to be needed. It provides sources with the most cost-effective means of fulfilling ongoing state and federal requirements that protect air quality.
No comments were received that indicate a need to repeal or revise the regulation.
The level of complexity of the regulation is appropriate to ensure that the regulated entities are able to meet their legal mandates as efficiently and cost-effectively as possible.
This regulation does not overlap, duplicate, or conflict with any state law or other state regulation. The regulation was last reviewed in 2018.
Contact Information: Karen G. Sabasteanski, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 659-1973.
VIRGINIA WASTE MANAGEMENT BOARD
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Virginia Waste Management Board conducted a periodic review and a small business impact review of 9VAC20-70, Financial Assurance Regulations for Solid Waste Disposal, Transfer and Treatment Facilities, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 22, 2022, to support this decision.
This regulation is necessary for the protection of public health, safety, and welfare and is clearly written and easily understandable. The board is recommending the regulation stay in effect without change. The regulation is beneficial to residents of the Commonwealth.
The current regulation continues to be needed. If a facility for the disposal, transfer, or treatment of solid waste is abandoned, the facility will need to be closed in a manner to minimize impacts to human health and the environment. This regulation requires owners and operators to provide funding to properly close the facility prior to operation of the facility. These requirements protect citizens of the Commonwealth from having to pay for the closure of these facilities if they are abandoned.
During the public comment period, five commenters requested the agency consider changing the financial assurance requirements to strengthen the regulation by providing greater oversight of the financial status of owners and operators of landfills in Virginia in order to protect the public. The regulation provides instruction for financial incapacity of owners, operators, or financial institutions and allows the agency director to reject the proposed evidence of financial responsibility if the mechanism or mechanisms submitted do not adequately assure that funds will be available for closure, post-closure care, or corrective action. Failure to provide or maintain adequate financial assurance in accordance with this regulation shall be a basis for revocation of a facility permit. The amount of financial assurance required to be provided is based on factors such as the facility size and the amount of solid waste managed at the facility. The amount of financial assurance required is based on the estimated costs related to properly close the facility. Privately-owned facilities are required to meet the same requirements as local government-owned facilities in the Commonwealth.
The regulation contains many different ways to demonstrate financial assurance, and these options may make the regulation appear to be complex to some readers, but the multiple financial assurance mechanisms included in the regulation provide additional flexibility to the regulated community, including small businesses.
Federal regulations (40 CFR Part 258) require owners and operators of municipal solid waste landfill units to provide financial assurance. Virginia law requires solid waste treatment, transfer, or disposal facilities to demonstrate financial assurance. The regulation does not conflict with federal law or regulations or with state law.
This regulation was last amended in 2018. Financial mechanisms used to demonstrate financial assurance have not changed since that time. The regulation continues to meet the requirements of state law and are being retained. The regulation includes multiple mechanisms for the regulated community to use to demonstrate financial assurance. The inclusion of multiple mechanisms is beneficial to small businesses.
Contact Information: Suzanne Taylor, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 659-1533.
STATE WATER CONTROL BOARD
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the State Water Control Board conducted a periodic review and a small business impact review of 9VAC25-71, Regulations Governing the Discharge of Sewage and Other Wastes from Boats, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 26, 2022, to support this decision.
This regulation is necessary for the protection of public health, safety, and welfare and is clearly written and easily understandable. Both untreated and treated sewage may contain disease-causing microorganisms, chemicals, and nutrients. Vessel sewage is more concentrated than domestic sewage, so it can have a disproportionate impact on water quality, especially in sensitive areas near shellfish beds or recreational areas. The regulation lists no discharge zones (NDZs) that have been approved by the U.S. Environmental Protection Agency (EPA) in accordance with § 312 of the Clean Water Act.
The board is recommending the regulation stay in effect without change. The regulation is beneficial to the protection of state waters and is no more stringent than existing requirements under state or federal law. The NDZ included in this regulation have been approved by EPA in accordance with § 312 of the Clean Water Act.
The current regulation continues to be needed. The regulation addresses discharges of sewage and other wastes from boats and identifies designated NDZs. This regulation is needed to prevent contamination of state waters from sewage discharges from boats in order to protect the health and safety of citizens of the Commonwealth.
Section 62.1-44.33 of the Code of Virginia includes language declaring that "tidal creeks of the Commonwealth are hereby established as no discharge zones for the discharge of sewage and other wastes from documented and undocumented boats and vessels. Criteria for the establishment of no discharge zones shall be premised on improvement of impaired tidal creeks." Virginia has applied to EPA for NDZs to be established in waters where local stakeholders and DEQ have determined that greater environmental protection is needed. NDZs are designated when adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available.
No public comments were received during the public comment period.
The subject matter of the regulation is complex in nature and the regulation details the requirements of the program. The regulation establishes NDZs in the Commonwealth, and the prohibition of the discharge of sewage and other waste in these areas upon designation of the NDZ by EPA. The regulation specifies requirements existing in the Code of Virginia with respect to discharges from boats and provides a means of designating NDZs, but it is no more stringent than existing requirements under state or federal law. Federal Marine Sanitation Device Standards found in 40 CFR Part 140 are referenced in this regulation.
The regulation was last amended in 2021 to establish two newly designated NDZs. Changes in technology and economic conditions since 2021 have not impacted the requirements of the regulation.
The agency is recommending the regulation stay in effect without change. The regulation is beneficial to state waters and is no more stringent than existing requirements under state or federal law. The NDZ included in this regulation have been approved by EPA.
Contact Information: Anthony Cario, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 814-7774.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the State Water Control Board conducted a periodic review and a small business impact review of 9VAC25-200, Water Withdrawal Reporting, and determined that this regulation should be retained as is. The board is publishing its report of findings dated July 26, 2022, to support this decision.
Water withdrawal reporting received in compliance with 9VAC25-200 provides foundational data needed to protect public, health, safety, and welfare. The resulting reporting data allows the Department of Environmental Quality (DEQ) to create an annual up-to-date water budget that provides predictability to water users. This information is necessary to develop state, regional, and local water supply plans and is necessary for the evaluation of surface water and groundwater withdrawal permit applications and to maintain both the surface water and groundwater models used in these evaluations. Economic development requires predictability and certainty that a water supply allocated to them will be available for a 30-year period, even under drought conditions. The modeling conducted protects the surface water and groundwater resources from becoming overdrawn. Large withdrawals of surface water and groundwater require permits to be issued before these withdrawals can occur. The most common basis for a new or expanded water withdrawal is to support economic development. These tools inform existing and prospective users of state waters of potential water availability and protect existing user's withdrawals from unaccounted for reductions in supply from drought or new upstream withdrawals. One example demonstrating the effectiveness of this approach is that no emergency withdrawal permit has been needed to meet existing permitted water need during any dry low flow period since 2010. Withdrawal reporting data is also used in developing total maximum daily loads (TMDLs) and TMDL implementation plans. It is the primary dataset relied on for the Annual Status of Virginia's Water Resources Report, which DEQ produces annually to inform the General Assembly and the public about current water use in Virginia.
The regulation is clearly written and easily understandable by the regulated community. This self-reported data set continues to provide high quality data with little clarification of the regulatory expectations required. The regulation has not changed in many years, and this long-term stability in the reporting requirement provides familiarity and comfort on the part of the regulated community in what the regulation requires.
DEQ proposes to retain the regulation without making changes as the current regulation is necessary for protecting public health, safety, and welfare, as the resulting data is necessary to support water resource management programs that are required to fulfil DEQ's statutory obligations. The information required by this regulation is needed to assess potential future water availability for water supplies and future economic development projects. Having an accurate water balance that is updated annually ensures accurate assessments of available water for future use, providing predictability and certainty that the water supply will continue to be available for growth and development. The regulation currently includes numerous exemptions to reduce the burden on the regulated community, and the program allows fast and simple electronic reporting to meet the single annual reporting requirement.
Given there is no known alternative to collecting water withdrawal reporting data from users that do not otherwise report in compliance with a permit, the regulation continues to be necessary. The regulated community has not expressed concerns with this regulation. The regulation as written reduces the likelihood of users being required to report similar information more than once to DEQ or other agencies and allows for multiple methods to submit reports, including a web-based electronic reporting interface. Reporting is only required once per year. The regulation is clearly written, concise at under four pages in total, and requires no additional guidance. The information required by this regulation is needed to assess potential future water availability for water supplies and future economic development projects.
No public comments were submitted during the periodic review comment period.
Reporting of surface and groundwater withdrawals is required by 9VAC25-210 and 9VAC25-610, respectively, but exemptions have been included in 9VAC25-200 to limit any overlap of reporting. There are no known federal laws or regulations that overlap with this regulation. The information required by this regulation is needed to assess potential future water availability for water supplies and future economic development projects. As additional stress is placed on groundwater aquifers, this information is critical to be obtained to be able to model future groundwater withdrawals and the impact that those withdrawals would have on groundwater aquifers.
A periodic review of the regulation was completed in 2018, and the regulation was retained without change. During that time there have been no significant changes to technology, economic conditions, or other factors related to the requirements, which remain appropriate and reasonable when considering data collection practices and technology available to the regulated community.
The reporting requirements have minimal impacts on small businesses with most businesses unlikely to be supplying their own water at a level requiring reporting. For those that do, the requirements are not burdensome with one annual reporting through the electronic portal providing an efficient and user friendly experience, while hardcopy submissions are allowed for users that prefer that method.
Contact Information: Ryan Green, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4258.
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TITLE 12. HEALTH
STATE BOARD OF HEALTH
Agency Notice
Pursuant to Executive Order 19 (2022) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 12VAC5-150, Regulations for the Sanitary Control of Storing, Processing, Packing or Repacking of Oysters, Clams and Other Shellfish. The review will be guided by the principles in Executive Order 19 (2022). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins October 10, 2022, and ends October 31, 2022.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Sarah Good, Plant Program Manager, Virginia Department of Health, James Madison Building, 109 Governor Street, Richmond, VA 23219, telephone (804) 659-3823.
Agency Notice
Pursuant to Executive Order 19 (2022) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 12VAC5-160, Regulations for the Sanitary Control of the Picking, Packing and Marketing of Crab Meat for Human Consumption. The review will be guided by the principles in Executive Order 19 (2022). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins October 24, 2022, and ends November 14, 2022.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Sarah Good, Plant Program Manager, Virginia Department of Health, James Madison Building, 109 Governor Street, Richmond, VA 23219, telephone (804) 659-3823.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the State Board of Health conducted a periodic review and a small business impact review of 12VAC5-490, Virginia Radiation Protection Regulations: Fee Schedule, and determined that this regulation should be amended. The board is publishing its report of findings dated August 3, 2022, to support this decision.
The regulation is necessary for the protection of the public from unnecessary radiation exposure through routine inspections and registrations of x-ray equipment and radioactive materials.
The Virginia Department of Health (VDH) is recommending that the regulation be amended to reflect increases in the cost of business operations required to perform inspections and ensure protection of the public from unnecessary radiation exposure. The fee schedule included in the regulation was last amended February 7, 2019.
Since then, inflation and the cost of operations associated with inspections, registrations, and licensing of x-ray equipment and radioactive materials has increased. VDH will take into consideration the effect that a fee increase will have on small businesses and will make every effort to amend the fee schedule in a manner that covers the costs needed for effective operations of the Office of Radiological Health.
Contact Information: Cameron Rose, Policy Analyst, Office of Radiological Health, Virginia Department of Health, James Madison Building, 109 Governor Street, Room 731, Richmond, VA 23219, telephone (804) 659-6687.
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Medical Assistance Services (DMAS) conducted a periodic review and a small business impact review of 12VAC30-130, Amount, Duration and Scope of Selected Services, and determined that this regulation should be retained as is. The board is publishing its report of findings dated August 1, 2022, to support this decision.
The primary advantage of the regulation is to facilitate access to a multitude of covered services to improve and maintain health and well-being. The regulation is necessary for the protection of public health, safety, and welfare of Medicaid members. The regulation is clearly written and easily understandable.
DMAS is not recommending any changes to this regulation because the regulation remains essential and has no negative impact.
The regulation is not anticipated to have an adverse impact on small businesses.
Contact Information: Jimeequa Williams, Regulatory Coordinator, Policy, Regulation, and Member Engagement Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 225-3508.