Title of Regulation: 2VAC5-318. Rules and Regulations for Enforcement of the Virginia Pest Law - Thousand Cankers Disease (amending 2VAC5-318-50).

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

Effective Date: July 24, 2012.

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.

Summary:

The amendment adds the counties of Fairfax and Prince William and the independent cities of Fairfax, Falls Church, Manassas, and Manassas Park to the Thousand Cankers Disease Quarantine. The amendments are necessary due to the detection of Thousand Cankers Disease in Fairfax and Prince William counties.

2VAC5-318-50. Regulated areas.

The following areas in Virginia are quarantined for Thousand Cankers Disease:

1. The entire counties of:

Chesterfield

Fairfax

Goochland

Hanover

Henrico

Powhatan

Prince William

2. The entire cities of:

Colonial Heights

Fairfax

Falls Church

Manassas

Manassas Park

Richmond

Title of Regulation: 2VAC5-335. Virginia Emerald Ash Borer Quarantine for Enforcement of the Virginia Pest Law (amending 2VAC5-335-10, 2VAC5-335-30 through 2VAC5-335-60; repealing 2VAC5-335-20, 2VAC5-335-70 through 2VAC5-335-100).

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

Effective Date: July 26, 2012.

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

Summary:

The amendment extends the Emerald Ash Borer quarantine to the entire Commonwealth of Virginia.

2VAC5-335-10. Declaration of quarantine.

A quarantine is hereby established to regulate the movement of certain articles capable of transporting the highly destructive pest of ash (Fraxinus spp.) known as the emerald ash borer, Agrilus planipennis (Fairemaire) into uninfested or unregulated areas of the state unless such articles comply with the conditions specified herein.

2VAC5-335-20. Purpose of quarantine. (Repealed.)

The emerald ash borer is an introduced beetle that specifically attacks and kills ash trees. It has become established in Fairfax County, Virginia, and has the potential to spread to uninfested counties by both natural means and humans moving infested articles. The purpose of this quarantine is to prevent the artificial spread of the emerald ash borer to uninfested areas of the state by regulating the movement of those articles that pose a significant threat of transporting the emerald ash borer.

2VAC5-335-30. Definitions.

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

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

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

"Emerald ash borer" means the live insect known as the emerald ash borer, Agrilus planipennis (Fairemaire), in any life stage (egg, larva, pupa, adult).

"Infestation" means the presence of the emerald ash borer or the existence of circumstances that make it reasonable to believe that the emerald ash borer is present.

"Inspector" means any employee of the Virginia Department of Agriculture and Consumer Services, or other person authorized by the commissioner to enforce the provisions of the quarantine or regulation.

"Limited permit (permit)" means a document issued by an inspector or other person operating in accordance with a compliance agreement to allow the movement of regulated articles to a specific destination.

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

"Person" means any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.

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

2VAC5-335-40. Regulated articles.

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

1. The emerald ash borer in any life stage.

2. Firewood of all hardwood (nonconiferous) species.

3. Ash (Fraxinus spp.) nursery stock.

4. Green (nonheat treated) ash lumber.

5. Other living, dead, cut, or fallen material of the genus Fraxinus, including logs, stumps, roots, branches, and composted and uncomposted wood chips.

2VAC5-335-50. Regulated areas.

The following areas in Virginia:

The entire counties of:

Arlington

Charlotte

Clarke

Fairfax

Fauquier

Frederick

Halifax

Loudoun

Lunenburg

Mecklenburg

Pittsylvania

Prince William

The entire independent cities of:

Alexandria

Danville

Fairfax City

Falls Church

Manassas

Manassas Park

Winchester

The entire Commonwealth of Virginia is a regulated area.

2VAC5-335-60. Conditions governing the intrastate movement of regulated articles.

A. Movement of a regulated article solely within the regulated area is allowed without restriction.

B. Any regulated article may be moved intrastate from a regulated area only if moved under the following conditions:

1. With a certificate or limited permit issued and attached in accordance with 2VAC5-335-70 and 2VAC5-335-100 of this quarantine.

2. Without a certificate or limited permit, if:

a. The points of origin and destination are indicated on a waybill accompanying the regulated article;

b. The regulated article, if moved through the regulated area during the period of April 1 through September 30, is moved in an enclosed vehicle or is completely covered to prevent access by the emerald ash borer;

c. The regulated article is moved directly through the regulated area without stopping (except for refueling or for traffic conditions, such as traffic lights or stop signs), or has been stored, packed, or handled at locations approved by an inspector as not posing a risk of infestation by the emerald ash borer; and

d. The regulated article has not been combined or commingled with other articles so as to lose its individual identity.

3. With a limited permit issued by the Commonwealth if the regulated article is moved:

a. By a state or federal agency for experimental or scientific purposes;

b. Under conditions, specified on the permit, which the commissioner has found to be adequate to prevent the spread of the emerald ash borer; and

c. With a tag or label bearing the number of the permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if the regulated article is not in a container.

2VAC5-335-70. Issuance and cancellation of certificates and limited permits. (Repealed.)

A. Certificates may be issued by an inspector or any person operating under a compliance agreement for the movement of regulated articles to any destination within Virginia when:

1. The articles have been examined by the inspector and found to be apparently free of the emerald ash borer;

2. The articles have been grown, produced, manufactured, stored or handled in such a manner that, in the judgment of the inspector, their movement does not present a risk of spreading the emerald ash borer;

3. The regulated article is to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of the emerald ash borer; and

4. The regulated article is eligible for unrestricted movement under all other state or federal domestic plant quarantines and regulations applicable to the regulated articles.

B. Limited permits may be issued by an inspector for the movement of regulated articles to specific destinations within Virginia if:

1. The regulated article is apparently free of emerald ash borer, based on inspection; or the article has been grown, produced, manufactured, stored, or handled in a manner that, in the judgment of the Virginia Department of Agriculture and Consumer Services, prevents the article from presenting a risk of spreading the emerald ash borer; or

2. The regulated article is to be moved intrastate to a specified destination under conditions that specify the limited handling, utilization, processing or treatment of the articles, when the inspector determines that such movement will not result in the spread of the emerald ash borer because the life stage(s) of the insect will be destroyed by such specified handling, utilization, processing or treatment; and

3. The regulated article is to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of the emerald ash borer; and

4. The regulated article is eligible for interstate movement under all other state or federal domestic plant quarantines and regulations applicable to the regulated article.

C. Certificates and limited permits for use for intrastate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the intrastate movement of a regulated article if an inspector has determined that the regulated article is otherwise eligible for a certificate in accordance with subsection A of this section. A person operating under a compliance agreement may issue a limited permit for intrastate movement of a regulated article when an inspector has determined that the regulated article is eligible for a limited permit in accordance with subsection B of this section.

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

2VAC5-335-80. Compliance agreements and cancellation. (Repealed.)

A. Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person understands this quarantine. The agreement shall stipulate that safeguards will be maintained against the establishment and spread of infestation, and will comply with the conditions governing the maintenance of identity, handling, and subsequent movement of such articles, and the cleaning and treatment of means of conveyance and containers.

B. Any compliance agreement may be canceled orally or in writing by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with this quarantine. If the cancellation is oral, the cancellation and the reasons for the cancellation shall be confirmed in writing as promptly as circumstances allow.

2VAC5-335-90. Assembly and inspection of regulated articles. (Repealed.)

A. Any person (other than a person authorized to issue certificates or limited permits under 2VAC5-335-70) who desires to move a regulated article intrastate accompanied by a certificate or limited permit shall apply for inspection as far in advance as possible, but at least five business days before the services are needed.

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

2VAC5-335-100. Attachment and disposition of certificates and limited permits. (Repealed.)

A. A certificate or limited permit required for the intrastate movement of a regulated article must be attached at all times during the intrastate movement to the outside of the container containing the regulated article or to the regulated article itself if not in a container. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.

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

Title of Regulation: 4VAC20-252. Pertaining to the Taking of Striped Bass (amending 4VAC20-252-90, 4VAC20-252-100).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: August 1, 2012.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments maintain an 18-inch minimum size limit, a 28-inch maximum size limit, and a two-fish possession limit for striped bass, except one fish of the two-fish possession limit may be greater than 28 inches total length. These measures apply to the Chesapeake Area recreational striped bass fishery and the Virginia tributaries of the Potomac River recreational striped bass fishery from October 4 through December 31.

4VAC20-252-90. Bay fall striped bass recreational fishery.

A. The open season for the bay fall striped bass recreational fishery shall be October 4 through December 31, inclusive.

B. The area open for this fishery shall be the Chesapeake Bay and its tributaries.

C. The minimum size limit for this fishery shall be 18 inches total length.

D. The maximum size limit for this fishery shall be 28 inches total length, except as provided in subsection F of this section; however, the maximum size limit shall only apply to one fish of the possession limit.

E. The possession limit for this fishery shall be two fish per person.

F. The possession limits described in subsection E of this section may consist of only one striped bass 34 inches or greater.

4VAC20-252-100. Potomac River tributaries summer/fall striped bass recreational fishery.

A. The open season for the Potomac River tributaries summer/fall striped bass fishery shall correspond to the open summer/fall season as established by the Potomac River Fisheries Commission for the mainstem Potomac River.

B. The area open for this fishery shall be the Potomac River tributaries.

C. The minimum size limit for this fishery shall be 18 inches total length.

D. The maximum size limit for this fishery shall be 28 inches total length, except as provided in subsection F of this section; however, the maximum size limit shall only apply to one fish of the possession limit.

E. The possession limit for this fishery shall be two fish per person.

F. The possession limits described in subsection E of this section may consist of only one striped bass 34 inches or greater.

Titles of Regulations: 9VAC5-10. General Definitions (Rev. J11) (amending 9VAC5-10-20).

9VAC5-20. General Provisions (Rev. J11) (repealing 9VAC5-20-202).

9VAC5-40. Existing Stationary Sources (Rev. J11) (repealing 9VAC5-40-6000 through 9VAC5-40-6230).

Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 12, 2012.

Effective Date: September 27, 2012.

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 (Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia) authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

The original purpose of the regulation was to establish emission standards that required the owners of HMIWIs to limit emissions of organics, metals, and acid gases to a specified level necessary to protect public health and welfare. The regulation was promulgated in order for the Commonwealth to meet the requirements of § 111(d) and 129 of the federal Clean Air Act.

Hospital/Medical/Infectious Waste Incinerators (HMIWI) emissions are a "designated" pollutant under § 111(d) of the Act. Designated pollutants are pollutants that are not 108(a) "criteria" pollutants or § 112(b)(1)(A) "hazardous" pollutants, but for which standards of performance for new sources have been established under § 111(b), new source performance standards (NSPSs). When the EPA establishes an NSPS, states are required to develop standards for existing facilities based on EPA emission guidelines. In conjunction of § 111(d), § 129 and its associated standards were promulgated because EPA determined that incinerator emissions cause or contribute significantly to air pollution, which may reasonably be expected to endanger public health and welfare. The intended effect of the standards and guidelines is to form a basis for state action to develop state regulations controlling HMIWI emissions to the level achievable by the best demonstrated system of continuous emission reduction, considering costs, nonair quality health and environmental impacts, and energy requirements. In order for §§ 111 and 129 to be effected, the specific guidelines are promulgated in the Code of Federal Regulations (CFR) at Subpart Ce of 40 CFR 63. State regulations must be at least as stringent as the guidelines.

The final rule (Subpart Ec of 40 CFR Part 60) was published by EPA in the Federal Register dated September 15, 1997 (62 FR 48348) and applies to existing HMIWIs built on or before June 20, 1996.

Purpose: The Commonwealth of Virginia HMIWI plan and related state rule were approved by EPA in the September 10, 2004, edition of the Federal Register (69 FR 54756) and codified in 40 CFR Part 62, Subpart VV. Since that time, all three designated incinerator facilities in the plan inventory subject to the state rule have been dismantled. On October 6, 2009, EPA promulgated revised HMIWI emission guidelines under 40 CFR Part 60, Subpart Ce, that triggered the need for revised state plan submittals. As a result, on September 13, 2010, the Department of Environmental Quality (DEQ) submitted a negative declaration regarding HMIWI sources within the state and requested EPA's approval of a SIP withdrawal request. In the December 17, 2010, edition of the Federal Register (75 FR 78917), EPA published Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants, Commonwealth of Virginia; Control of Emissions from Existing Hospital/Medical/Infectious Waste Incinerator (HMIWI) Units, Negative Declaration and Withdrawal of EPA Plan Approval. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective February 15, 2011. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 should also be repealed as the term is only used in Article 44 and in no other regulation of the board.

Rationale for Using Fast-Track Process: Virginia requested a finding of negative declaration for HMIWI on September 13, 2010, as all designated incinerator facilities in the plan inventory subject to Article 44 had been dismantled. On December 17, 2010, EPA approved the negative declaration and modified the Code of Federal Regulations accordingly. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective on February 15, 2011. Because there are no sources subject to the regulation and no HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation or for the use of the term "metropolitan statistical area" in 9VAC5-10-20 and 9VAC5-20-202. There is no stakeholder group that is likely to object to the repeal of the regulation. The use of the fast-track rulemaking process is, therefore, appropriate.

Substance: Article 44 is repealed in its entirety. 9VAC5-10 and 9VAC5-20 are revised to remove provisions concerning metropolitan statistical areas, which are used only in Article 44.

Issues: The primary advantage to the public is the removal of unusable regulatory requirements. There are no disadvantages to the public. The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Since the initial adoption of the regulation on Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities in the Commonwealth have been dismantled. In 2009, the U.S. Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. Thus, the State Air Pollution Control Board (Board) proposes to repeal the Commonwealth's HMIWI regulations (9VAC5-40-6000 et seq.). The Board also proposes to repeal the definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 since the term is only used in the HMIWI regulation and no other regulation of the board.

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

Estimated Economic Impact. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, the proposed repeal of this regulation will not affect any individual, business or other entity beyond potentially reducing confusion amongst the public.

Businesses and Entities Affected. Since the facilities that were subject to this regulation have been dismantled, there are no stakeholders that will be affected by the repeal of this regulation.

Localities Particularly Affected. The proposed repeal of this regulation does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of this regulation will not affect small businesses.

Real Estate Development Costs. The proposed repeal of this regulation will not 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 Economic Impact Analysis: The State Air Pollution Control Board of has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Since the initial adoption of Article 44, Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities have been dismantled. In 2009, the Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term metropolitan statistical area in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 are also repealed as the term is only used in Article 44 and no other regulation of the board.

9VAC5-10-20. Terms defined.

"Actual emissions rate" means the actual rate of emissions of a pollutant from an emissions unit. In general actual emissions shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during the most recent two-year period or some other two-year period which is representative of normal source operation. If the board determines that no two-year period is representative of normal source operation, the board shall allow the use of an alternative period of time upon a determination by the board 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.

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

"Affected facility" means, with reference to a stationary source, any part, equipment, facility, installation, apparatus, process or operation to which an emission standard is applicable or any other facility so designated. The term "affected facility" includes any affected source as defined in 40 CFR 63.2.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety; to animal or plant life; or to property; or which unreasonably interfere with the enjoyment by the people of life or property.

"Air quality" means the specific measurement in the ambient air of a particular air pollutant at any given time.

"Air quality control region" means any area designated as such in 9VAC5-20-200.

"Alternative method" means any method of sampling and analyzing for an air pollutant which is not a reference or equivalent method, but which has been demonstrated to the satisfaction of the board, in specific cases, to produce results adequate for its determination of compliance.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Ambient air quality standard" means any primary or secondary standard designated as such in 9VAC5-30 (Ambient Air Quality Standards).

"Board" means the State Air Pollution Control Board or its designated representative.

"Class I area" means any prevention of significant deterioration area (i) in which virtually any deterioration of existing air quality is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class II area" means any prevention of significant deterioration area (i) in which any deterioration of existing air quality beyond that normally accompanying well-controlled growth is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class III area" means any prevention of significant deterioration area (i) in which deterioration of existing air quality to the levels of the ambient air quality standards is permitted and (ii) designated as such in 9VAC5-20-205.

"Continuous monitoring system" means the total equipment used to sample and condition (if applicable), to analyze, and to provide a permanent continuous record of emissions or process parameters.

"Control program" means a plan formulated by the owner of a stationary source to establish pollution abatement goals, including a compliance schedule to achieve such goals. The plan may be submitted voluntarily, or upon request or by order of the board, to ensure compliance by the owner with standards, policies and regulations adopted by the board. The plan shall include system and equipment information and operating performance projections as required by the board for evaluating the probability of achievement. A control program shall contain the following increments of progress:

1. The date by which contracts for emission control system or process modifications are to be awarded, or the date by which orders are to be issued for the purchase of component parts to accomplish emission control or process modification.

2. The date by which the on-site construction or installation of emission control equipment or process change is to be initiated.

3. The date by which the on-site construction or installation of emission control equipment or process modification is to be completed.

4. The date by which final compliance is to be achieved.

"Criteria pollutant" means any pollutant for which an ambient air quality standard is established under 9VAC5-30 (Ambient Air Quality Standards).

"Day" means a 24-hour period beginning at midnight.

"Delayed compliance order" means any order of the board issued after an appropriate hearing to an owner which postpones the date by which a stationary source is required to comply with any requirement contained in the applicable implementation plan.

"Department" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"Director" or "executive director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Dispersion technique"

1. Means any technique which attempts to affect the concentration of a pollutant in the ambient air by:

a. Using that portion of a stack which exceeds good engineering practice stack height;

b. Varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or

c. Increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

2. The preceding sentence does not include:

a. The reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream;

b. The merging of exhaust gas streams where:

(1) The owner demonstrates that the facility was originally designed and constructed with such merged gas streams;

(2) After July 8, 1985, such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant. This exclusion from the definition of "dispersion techniques" shall apply only to the emissions limitation for the pollutant affected by such change in operation; or

(3) Before July 8, 1985, such merging was part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. Where there was an increase in the emissions limitation or, in the event that no emissions limitation was in existence prior to the merging, an increase in the quantity of pollutants actually emitted prior to the merging, the board shall presume that merging was significantly motivated by an intent to gain emissions credit for greater dispersion. Absent a demonstration by the owner that merging was not significantly motivated by such intent, the board shall deny credit for the effects of such merging in calculating the allowable emissions for the source;

c. Smoke management in agricultural or silvicultural prescribed burning programs;

d. Episodic restrictions on residential woodburning and open burning; or

e. Techniques under subdivision 1 c of this definition which increase final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed 5,000 tons per year.

"Emergency" means 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 limitation" means any requirement established by the board which limits the quantity, rate, or concentration of continuous emissions of air pollutants, including any requirements which limit the level of opacity, prescribe equipment, set fuel specifications, or prescribe operation or maintenance procedures to assure continuous emission reduction.

"Emission standard" means any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources) that prescribes an emissions limitation, or other requirements that control air pollution emissions.

"Emissions unit" means any part of a stationary source which emits or would have the potential to emit any air pollutant.

"Equivalent method" means any method of sampling and analyzing for an air pollutant which has been demonstrated to the satisfaction of the board to have a consistent and quantitative relationship to the reference method under specified conditions.

"EPA" means the U.S. Environmental Protection Agency or an authorized representative.

"Excess emissions" means emissions of air pollutant in excess of an emission standard.

"Excessive concentration" is defined for the purpose of determining good engineering practice (GEP) stack height under subdivision 3 of the GEP definition and means:

1. For sources seeking credit for stack height exceeding that established under subdivision 2 of the GEP definition, a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and which contributes to a total concentration due to emissions from all sources that is greater than an ambient air quality standard. For sources subject to the provisions of Article 8 (9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources), an excessive concentration alternatively means a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations under this provision shall be prescribed by the new source performance standard that is applicable to the source category unless the owner demonstrates that this emission rate is infeasible. Where such demonstrations are approved by the board, an alternative emission rate shall be established in consultation with the owner;

2. For sources seeking credit after October 11, 1983, for increases in existing stack heights up to the heights established under subdivision 2 of the GEP definition, either (i) a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects as provided in subdivision 1 of this definition, except that the emission rate specified by any applicable implementation plan (or, in the absence of such a limit, the actual emission rate) shall be used, or (ii) the actual presence of a local nuisance caused by the existing stack, as determined by the board; and

3. For sources seeking credit after January 12, 1979, for a stack height determined under subdivision 2 of the GEP definition where the board requires the use of a field study or fluid model to verify GEP stack height, for sources seeking stack height credit after November 9, 1984, based on the aerodynamic influence of cooling towers, and for sources seeking stack height credit after December 31, 1970, based on the aerodynamic influence of structures not adequately represented by the equations in subdivision 2 of the GEP definition, a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects that is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects.

"Existing source" means any stationary source other than a new source or modified source.

"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 Clean Air Act" means Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"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:

1. Emission standards, alternative emission standards, alternative emissions limitations, and equivalent emissions 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 implementation plan.

5. Limitations and conditions that are part of a section 111(d) or section 111(d)/129 plan.

6. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51.

7. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting 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.

8. Limitations and conditions 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.

9. Individual consent agreements issued pursuant to the legal authority of EPA.

"Good engineering practice" or "GEP," with reference to the height of the stack, means the greater of:

1. 65 meters, measured from the ground-level elevation at the base of the stack;

2. a. For stacks in existence on January 12, 1979, and for which the owner had obtained all applicable permits or approvals required under 9VAC5-80 (Permits for Stationary Sources),

Hg = 2.5H,

provided the owner produces evidence that this equation was actually relied on in establishing an emissions limitation;

b. For all other stacks,

Hg = H + 1.5L,

where:

Hg = good engineering practice stack height, measured from the ground-level elevation at the base of the stack,

H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack,

L = lesser dimension, height or projected width, of nearby structure(s) provided that the board may require the use of a field study or fluid model to verify GEP stack height for the source; or

3. The height demonstrated by a fluid model or a field study approved by the board, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features.

"Hazardous air pollutant" means an air pollutant to which no ambient air quality standard is applicable and which in the judgment of the administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved 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.

"Initial emission test" means the test required by any regulation, permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources), control program, compliance schedule or other enforceable mechanism for determining compliance with new or more stringent emission standards or permit limitations or other emissions limitations requiring the installation or modification of air pollution control equipment or implementation of a control method. Initial emission tests shall be conducted in accordance with 9VAC5-40-30.

"Initial performance test" means the test required by (i) 40 CFR Part 60 for determining compliance with standards of performance, or (ii) a permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources) for determining initial compliance with permit limitations. Initial performance tests shall be conducted in accordance with 9VAC5-50-30 and 9VAC5-60-30.

"Isokinetic sampling" means sampling in which the linear velocity of the gas entering the sampling nozzle is equal to that of the undisturbed gas stream at the sample point.

"Locality" means a city, town, county or other public body created by or pursuant to state law.

"Maintenance area" means any geographic region of the United States previously designated as a nonattainment area and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan and designated as such in 9VAC5-20-203.

"Malfunction" means any sudden failure of air pollution control equipment, of process equipment, or of a process to operate in a normal or usual manner, which failure is not due to intentional misconduct or negligent conduct on the part of the owner or other person. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.

"Metropolitan statistical area" means any area designated as such in 9VAC5-20-202.

"Monitoring device" means the total equipment used to measure and record (if applicable) process parameters.

"Nearby" as used in the definition of good engineering practice (GEP) is defined for a specific structure or terrain feature and:

1. For purposes of applying the formulae provided in subdivision 2 of the GEP definition means that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 km (1/2 mile); and

2. For conducting demonstrations under subdivision 3 of the GEP definition means not greater than 0.8 km (1/2 mile), except that the portion of a terrain feature may be considered to be nearby which falls within a distance of up to 10 times the maximum height (Ht) of the feature, not to exceed two miles if such feature achieves a height (Ht) 0.8 km from the stack that is at least 40% of the GEP stack height determined by the formulae provided in subdivision 2 b of the GEP definition or 26 meters, whichever is greater, as measured from the ground-level elevation at the base of the stack. The height of the structure or terrain feature is measured from the ground-level elevation at the base of the stack.

"Nitrogen oxides" means all oxides of nitrogen except nitrous oxide, as measured by test methods set forth in 40 CFR Part 60.

"Nonattainment area" means any area which is shown by air quality monitoring data or, where such data are not available, which is calculated by air quality modeling (or other methods determined by the board to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant including, but not limited to, areas designated as such in 9VAC5-20-204.

"One hour" means any period of 60 consecutive minutes.

"One-hour period" means any period of 60 consecutive minutes commencing on the hour.

"Organic compound" means any chemical compound of carbon excluding carbon monoxide, carbon dioxide, carbonic disulfide, carbonic acid, metallic carbides, metallic carbonates and ammonium carbonate.

"Owner" means any person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals, who owns, leases, operates, controls or supervises a source.

"Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers.

"Particulate matter emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"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.

"PM₁₀ emissions" means finely divided solid or liquid material, with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"Performance test" means a test for determining emissions from new or modified sources.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Pollutant" means any substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interferes with the enjoyment by the people of life or property.

"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 its effect on emissions is state and federally enforceable.

"Prevention of significant deterioration area" means any area not designated as a nonattainment area in 9VAC5-20-204 for a particular pollutant and designated as such in 9VAC5-20-205.

"Proportional sampling" means sampling at a rate that produces a constant ratio of sampling rate to stack gas flow rate.

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007.02 of the Administrative Process Act, held to afford persons an opportunity to submit views and data relative to a matter on which a decision of the board is pending.

"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.

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.

"Regional director" means the regional director of an administrative region of the Department of Environmental Quality or a designated representative.

"Regulation of the board" means any regulation adopted by the State Air Pollution Control Board under any provision of the Code of Virginia.

"Regulations for the Control and Abatement of Air Pollution" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Reid vapor pressure" means the absolute vapor pressure of volatile crude oil and volatile nonviscous petroleum liquids except liquefied petroleum gases as determined by American Society for Testing and Materials publication, "Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)" (see 9VAC5-20-21).

"Run" means the net period of time during which an emission sample is collected. Unless otherwise specified, a run may be either intermittent or continuous within the limits of good engineering practice.

"Section 111(d) plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with § 111(d)(1) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with § 111 (d)(2) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Section 111(d)/129 plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with §§ 111(d)(1) and 129(b)(2) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with §§ 111(d)(2) and 129(b)(3) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Shutdown" means the cessation of operation of an affected facility for any purpose.

"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.

"Stack" means any point in a source designed to emit solids, liquids or gases into the air, including a pipe or duct, but not including flares.

"Stack in existence" means that the owner had:

1. Begun, or caused to begin, a continuous program of physical on site construction of the stack; or

2. Entered into binding agreements or contractual obligations, which could not be canceled or modified without substantial loss to the owner, to undertake a program of construction of the stack to be completed in a reasonable time.

"Standard conditions" means a temperature of 20°C (68°F) and a pressure of 760 mm of Hg (29.92 inches of Hg).

"Standard of performance" means any provision of 9VAC5-50 (New and Modified Stationary Sources) which prescribes an emissions limitation or other requirements that control air pollution emissions.

"Startup" means the setting in operation of an affected facility for any purpose.

"State enforceable" means all limitations and conditions which are enforceable by the board or department, including, but not limited to, those requirements developed pursuant to 9VAC5-20-110; requirements within any applicable regulation, order, consent agreement or variance; and any permit requirements established pursuant to 9VAC5-80 (Permits for Stationary Sources).

"State Implementation Plan" means the plan, including the most recent revision thereof, which has been approved or promulgated by the administrator, U.S. Environmental Protection Agency, under § 110 of the federal Clean Air Act, and which implements the requirements of § 110.

"Stationary source" means any building, structure, facility or installation which emits or may emit any 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) 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 (see 9VAC5-20-21).

"These regulations" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Total suspended particulate (TSP)" means particulate matter as measured by the reference method described in Appendix B of 40 CFR Part 50.

"True vapor pressure" means the equilibrium partial pressure exerted by a petroleum liquid as determined in accordance with methods described in American Petroleum Institute (API) publication, "Evaporative Loss from External Floating-Roof Tanks" (see 9VAC5-20-21). The API procedure may not be applicable to some high viscosity or high pour crudes. Available estimates of true vapor pressure may be used in special cases such as these.

"Urban area" means any area consisting of a core city with a population of 50,000 or more plus any surrounding localities with a population density of 80 persons per square mile and designated as such in 9VAC5-20-201.

"Vapor pressure," except where specific test methods are specified, means true vapor pressure, whether measured directly, or determined from Reid vapor pressure by use of the applicable nomograph in American Petroleum Institute publication, "Evaporative Loss from Floating-Roof Tanks" (see 9VAC5-20-21).

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Volatile organic compound" means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions.

1. This includes any such organic compounds which have been determined to have negligible photochemical reactivity other than the following:

a. Methane;

b. Ethane;

c. Methylene chloride (dichloromethane);

d. 1,1,1-trichloroethane (methyl chloroform);

e. 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113);

f. Trichlorofluoromethane (CFC-11);

g. Dichlorodifluoromethane (CFC-12);

h. Chlorodifluoromethane (H CFC-22);

i. Trifluoromethane (H FC-23);

j. 1,2-dichloro 1,1,2,2,-tetrafluoroethane (CFC-114);

k. Chloropentafluoroethane (CFC-115);

l. 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123);

m. 1,1,1,2-tetrafluoroethane (HFC-134a);

n. 1,1-dichloro 1-fluoroethane (HCFC-141b);

o. 1-chloro 1,1-difluoroethane (HCFC-142b);

p. 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124);

q. Pentafluoroethane (HFC-125);

r. 1,1,2,2-tetrafluoroethane (HFC-134);

s. 1,1,1-trifluoroethane (HFC-143a);

t. 1,1-difluoroethane (HFC-152a);

u. Parachlorobenzotrifluoride (PCBTF);

v. Cyclic, branched, or linear completely methylated siloxanes;

w. Acetone;

x. Perchloroethylene (tetrachloroethylene);

y. 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca);

z. 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb);

aa. 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee);

bb. Difluoromethane (HFC-32);

cc. Ethylfluoride (HFC-161);

dd. 1,1,1,3,3,3-hexafluoropropane (HFC-236fa);

ee. 1,1,2,2,3-pentafluoropropane (HFC-245ca);

ff. 1,1,2,3,3-pentafluoropropane (HFC-245ea);

gg. 1,1,1,2,3-pentafluoropropane (HFC-245eb);

hh. 1,1,1,3,3-pentafluoropropane (HFC-245fa);

ii. 1,1,1,2,3,3-hexafluoropropane (HFC-236ea);

jj. 1,1,1,3,3-pentafluorobutane (HFC-365mfc);

kk. Chlorofluoromethane (HCFC-31);

ll. 1 chloro-1-fluoroethane (HCFC-151a);

mm. 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a);

nn. 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C₄F₉OCH₃ or HFE-7100);

oo. 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂ OCH₃);

pp. 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C₄F₉ OC₂H₅ or HFE-7200);

qq. 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂OC₂H₅);

rr. Methyl acetate; ss. 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C₃F₇OCH₃) (HFE-7000);

tt. 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500);

uu. 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea);

vv. methyl formate (HCOOCH₃);

ww. (1) 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300);

xx. propylene carbonate;

yy. dimethyl carbonate; and

zz. Perfluorocarbon compounds which fall into these classes:

(1) Cyclic, branched, or linear, completely fluorinated alkanes;

(2) Cyclic, branched, or linear, completely fluorinated ethers with no unsaturations;

(3) Cyclic, branched, or linear, completely fluorinated tertiary amines with no unsaturations; and

(4) Sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

2. For purposes of determining compliance with emissions standards, volatile organic compounds shall be measured by the appropriate reference method in accordance with the provisions of 9VAC5-40-30 or 9VAC5-50-30, as applicable. Where such a method also measures compounds with negligible photochemical reactivity, these negligibly reactive compounds may be excluded as a volatile organic compound if the amount of such compounds is accurately quantified, and such exclusion is approved by the board.

3. As a precondition to excluding these compounds as volatile organic compounds or at any time thereafter, the board may require an owner to provide monitoring or testing methods and results demonstrating, to the satisfaction of the board, the amount of negligibly reactive compounds in the emissions of the source.

4. Exclusion of the above compounds in this definition in effect exempts such compounds from the provisions of emission standards for volatile organic compounds. The compounds are exempted on the basis of being so inactive that they will not contribute significantly to the formation of ozone in the troposphere. However, this exemption does not extend to other properties of the exempted compounds which, at some future date, may require regulation and limitation of their use in accordance with requirements of the federal Clean Air Act.

5. The following compound is a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements that apply to VOCs and shall be uniquely identified in emission reports, but is not a VOC for purposes of VOC emission standards, VOC emissions limitations, or VOC content requirements: t-butyl acetate.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-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.

9VAC5-20-202. Metropolitan statistical areas. (Repealed.)

Metropolitan Statistical Areas are geographically defined as follows:

TITLE	GEOGRAPHICAL AREA
Bristol MSA	Bristol City Scott County Washington County
Charlottesville MSA	Charlottesville City Albemarle County Fluvanna County Greene County
Danville MSA	Danville City Pittsylvania County
Lynchburg MSA	Bedford City Lynchburg City Amherst County Bedford County Campbell County
Norfolk-Virginia Beach-Newport News MSA	Chesapeake City Norfolk City Portsmouth City Suffolk City Virginia Beach City Hampton City Newport News City Poquoson City Williamsburg City Gloucester County Isle of Wight County James City County Mathews County York County
Richmond-Petersburg MSA	Richmond City Colonial Heights City Hopewell City Petersburg City Charles City County Chesterfield County Goochland County Hanover County Henrico County New Kent County Powhatan County Prince George County Dinwiddie County
Roanoke MSA	Roanoke City Salem City Botetourt County Roanoke County
National Capital MSA	Alexandria City Fairfax City Falls Church City Fredericksburg City Manassas City Manassas Park City Arlington County Clarke County Culpeper County Fairfax County Fauquier County King George County Loudoun County Prince William County Spottsylvania County Stafford County Warren County

Article 44
Emission Standards for Hospital/Medical/Infectious Waste Incinerators (Rule 4-44)

9VAC5-40-6000. Applicability and designation of affected facility. (Repealed.)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each individual HMIWI for which construction was commenced on or before June 20, 1996.

B. The provisions of this article apply throughout the Commonwealth of Virginia.

C. Exempted from the provisions of this article are the following:

1. Combustors during periods when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned, provided the owner:

a. Notifies the board of an exemption claim; and

b. Keeps records on a calendar quarter basis of the periods of time when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned.

2. Any co-fired combustor if the owner of the co-fired combustor:

a. Notifies the board of an exemption claim;

b. Provides an estimate of the relative weight of hospital waste, medical/infectious waste, and other fuels and or wastes to be combusted; and

c. Keeps records on a calendar quarter basis of the weight of hospital waste and medical/infectious waste combusted, and the weight of all other fuels and wastes combusted at the co-fired combustor.

3. Any combustor required to have a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.).

4. Any combustor which meets the applicability requirements under subpart Ea or Eb of 40 CFR Part 60 (standards for certain municipal waste combustors).

5. Any pyrolysis unit.

6. Cement kilns firing hospital waste and medical/infectious waste or both.

D. The provisions of this article do not apply to affected facilities subject to the standards in 9VAC5 Chapter 40, Article 54 (9VAC5-40-7950 et seq.).

E. Physical or operational changes made to an existing HMIWI unit solely for the purpose of complying with this article are not considered a modification and do not result in an existing HMIWI unit becoming subject to the provisions of subpart Ec of 40 CFR Part 60 (see 40 CFR 60.50c).

F. Beginning September 15, 2000, affected facilities subject to this article shall operate pursuant to a federal operating permit.

G. The provisions of 40 CFR Part 60 cited in this article are applicable only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50.

H. The requirement of subdivision C 3 of this section with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC20 Chapter 60.

9VAC5-40-6010. Definitions. (Repealed.)

A. For the purpose of 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 meanings given them in subsection C of this section.

B. As used in this article, all terms not defined here shall have the meanings given them in 9VAC5 Chapter 10, unless otherwise required by context.

C. Terms defined.

"Batch HMIWI" means an HMIWI that is designed such that neither waste charging nor ash removal can occur during combustion.

"Biologicals" means preparations made from living organisms and their products, including vaccines, cultures, etc., intended for use in diagnosing, immunizing, or treating humans or animals or in research pertaining thereto.

"Blood products" means any product derived from human blood, including but not limited to blood plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon, etc.

"Body fluids" means any liquid emanating or derived from humans and not limited to blood; dialysate; amniotic, cerebrospinal, synovial, pleural, peritoneal and pericardial fluids; and semen and vaginal secretions.

"Bypass stack" means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

"Chemotherapeutic waste" means waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells.

"Co-fired combustor" means a unit combusting hospital waste and medical/infectious waste or both with other fuels or wastes (e.g., coal, municipal solid waste) and subject to an enforceable requirement limiting the unit to combusting a fuel feed stream, 10% or less of the weight of which is comprised, in aggregate, of hospital waste and medical/infectious waste as measured on a calendar quarter basis. For purposes of this definition, pathological waste, chemotherapeutic waste, and low-level radioactive waste are considered "other" wastes when calculating the percentage of hospital waste and medical/infectious waste combusted.

"Combustor" means any type of stationary equipment in which solid, liquid or gaseous fuels and refuse are burned (including, but not limited to, furnaces, ovens, and kilns) for the primary purpose of destroying matter or reducing the volume, or both, of the waste by removing combustible matter.

"Commenced" means an owner has undertaken a continuous program of construction or modification or that an owner has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification.

"Compliance schedule" means a legally enforceable schedule specifying a date or dates by which a source must comply with specific emission limits contained in this article or with any increments of progress to achieve such compliance.

"Construction" means fabrication, erection, or installation of an affected facility.

"Continuous emission monitoring system" means a monitoring system for continuously measuring and recording the emissions of a pollutant from an affected facility.

"Continuous HMIWI" means an HMIWI that is designed to allow waste charging and ash removal during combustion.

"Dioxins/furans" means the combined emissions of tetra-through octa-chlorinated dibenzo-para-dioxins and dibenzofurans, as measured by Reference Method 23.

"Dry scrubber" means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the HMIWI exhaust stream forming a dry powder material.

"Fabric filter" means an add-on air pollution control system that removes particulate matter and nonvaporous metals emissions by passing flue gas through filter bags.

"Facilities manager" means the individual in charge of purchasing, maintaining, and operating the HMIWI or the owner's representative responsible for the management of the HMIWI. Alternative titles may include director of facilities or vice president of support services.

"Federal operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of Part II of 9VAC5 Chapter 80.

"High-air phase" means the stage of the batch operating cycle when the primary chamber reaches and maintains maximum operating temperatures.

"Hospital" means any facility which has an organized medical staff, maintains at least six inpatient beds, and where the primary function of the institution is to provide diagnostic and therapeutic patient services and continuous nursing care primarily to human inpatients who are not related and who stay on average in excess of 24 hours per admission. This definition does not include facilities maintained for the sole purpose of providing nursing or convalescent care to human patients who generally are not acutely ill but who require continuing medical supervision.

"Hospital/medical/infectious waste incinerator" or "HMIWI" or "HMIWI unit" means any device that combusts any amount of hospital waste and medical/infectious waste or both.

"Hospital/medical/infectious waste incinerator operator" or "HMIWI operator" means any person who operates, controls or supervises the day-to-day operation of an HMIWI.

"Hospital waste" means discards generated at a hospital, except unused items returned to the manufacturer. The definition of hospital waste does not include human corpses, remains, and anatomical parts that are intended for interment or cremation.

"Infectious agent" means any organism (such as a virus or bacteria) that is capable of being communicated by invasion and multiplication in body tissues and capable of causing disease or adverse health impacts in humans.

"Intermittent HMIWI" means an HMIWI that is designed to allow waste charging, but not ash removal, during combustion.

"Large HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day.

2. The following are not large HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is less than or equal to 4,000 pounds per day.

"Low-level radioactive waste" means waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 USC § 2014(e)(2)).

"Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. During periods of malfunction the HMIWI operator shall operate within established parameters as much as possible, and monitoring of all applicable operating parameters shall continue until all waste has been combusted or until the malfunction ceases, whichever comes first.

"Maximum charge rate" means:

1. For continuous and intermittent HMIWI, 110% of the lowest three-hour average charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

2. For batch HMIWI, 110% of the lowest daily charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Maximum design waste burning capacity" means:

1. For intermittent and continuous HMIWI,

C = P_V X 15,000/8,500

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

15,000 = primary chamber heat release rate factor, Btu/ft³/hr

8,500 = standard waste heating value, Btu/lb;

2. For batch HMIWI,

C = P_V X 4.5/8

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

4.5 = waste density, lb/ft³

8 = typical hours of operation of a batch HMIWI, hours.

"Maximum fabric filter inlet temperature" means 110% of the lowest three-hour average temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Maximum flue gas temperature" means 110% of the lowest three-hour average temperature at the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Medical/infectious waste" means any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals that is listed in subdivisions 1 through 9 of this definition. The definition of medical/infectious waste does not include hazardous waste identified or listed under the regulations in 40 CFR Part 261; household waste, as defined in 40 CFR 261.4(b)(1); ash from incineration of medical/infectious waste, once the incineration process has been completed; human corpses, remains, and anatomical parts that are intended for interment or cremation; and domestic sewage materials identified in 40 CFR 261.4(a)(1).

1. Cultures and stocks of infectious agents and associated biologicals, including: cultures from medical and pathological laboratories; cultures and stocks of infectious agents from research and industrial laboratories; wastes from the production of biologicals; discarded live and attenuated vaccines; and culture dishes and devices used to transfer, inoculate, and mix cultures.

2. Human pathological waste, including tissues, organs, and body parts and body fluids that are removed during surgery or autopsy, or other medical procedures, and specimens of body fluids and their containers.

3. Human blood and blood products, regardless of whether containerized, including:

a. Liquid human blood;

b. Products of blood;

c. Items containing unabsorbed or free-flowing blood;

d. Items saturated or dripping or both with human blood; or

e. Items that were saturated or dripping or both with human blood that are now caked with dried human blood; including serum, plasma, and other blood components, and their containers, which were used or intended for use in either patient care, testing and laboratory analysis or the development of pharmaceuticals. Intravenous bags are also included in this category.

4. Regardless of the presence of infectious agents, sharps that have been used in animal or human patient care or treatment or in medical, research, or industrial laboratories, including hypodermic needles, syringes (with or without the attached needle), pasteur pipettes, scalpel blades, blood vials, needles with attached tubing, and culture dishes. Also included are other types of broken or unbroken glassware that may have been in contact with infectious agents, such as used slides and cover slips.

5. Animal waste including contaminated animal carcasses, body parts, and bedding of animals that were known to have been exposed to infectious agents during research (including research in veterinary hospitals), production of biologicals or testing of pharmaceuticals.

6. Isolation wastes including biological waste and discarded materials contaminated with blood, excretions, exudates, or secretions from humans who are isolated to protect others from certain highly communicable diseases, or isolated animals known to be infected with highly communicable diseases.

7. Unused sharps including the following unused, discarded sharps: hypodermic needles, suture needles, syringes, and scalpel blades.

8. Any waste that is contaminated or mixed with any waste listed in subdivisions 1 through 7 of this definition.

9. Any residue or contaminated soil, waste, or other debris resulting from the cleaning of a spill of any waste listed in subdivisions 1 through 8 of this definition.

"Medium HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 200 pounds per hour but less than or equal to 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour but less than or equal to 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day but less than or equal to 4,000 pounds per day.

2. The following are not medium HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour or more than 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day or less than or equal to 1,600 pounds per day.

"Minimum dioxin/furan sorbent flow rate" means 90% of the highest three-hour average dioxin/furan sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Minimum mercury sorbent flow rate" means 90% of the highest three-hour average mercury sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Minimum hydrogen chloride sorbent flow rate" means 90% of the highest three-hour average hydrogen chloride sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum horsepower or amperage" means 90% of the highest three-hour average horsepower or amperage to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the applicable emission limits.

"Minimum pressure drop across the wet scrubber" means 90% of the highest three-hour average pressure drop across the wet scrubber particulate matter control device (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter emission limit.

"Minimum scrubber liquor flow rate" means 90% of the highest three-hour average liquor flow rate at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Minimum scrubber liquor pH" means 90% of the highest three-hour average liquor pH at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum secondary chamber temperature" means 90% of the highest three-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter, carbon monoxide, or dioxin/furan emission limits.

"Modification" means any change to an HMIWI unit after March 16, 1998, such that:

1. The cumulative costs of the modifications, over the life of the unit, exceed 50% of the original cost of the construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) updated to current costs; or

2. The change involves a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under § 111 or § 129 of the federal Clean Air Act.

"Operating day" means a 24-hour period between 12:00 midnight and the following midnight during which any amount of hospital waste or medical/infectious waste is combusted at any time in the HMIWI.

"Operation" means the period during which waste is combusted in the incinerator excluding periods of startup or shutdown.

"Particulate matter" means the total particulate matter emitted from an HMIWI as measured by Reference Method 5 or Reference Method 29.

"Pathological waste" means waste material consisting of only human or animal remains, anatomical parts, or tissue, the bags and containers used to collect and transport the waste material, and animal bedding (if applicable).

"Primary chamber" means the chamber in an HMIWI that receives waste material, in which the waste is ignited, and from which ash is removed.

"Pyrolysis" means the endothermic gasification of hospital waste or medical/infectious waste or both using external energy.

"Secondary chamber" means a component of the HMIWI that receives combustion gases from the primary chamber and in which the combustion process is completed.

"Shutdown" means the period of time after all waste has been combusted in the primary chamber. For continuous HMIWI, shutdown shall commence no less than two hours after the last charge to the incinerator. For intermittent HMIWI, shutdown shall commence no less than four hours after the last charge to the incinerator. For batch HMIWI, shutdown shall commence no less than five hours after the high-air phase of combustion has been completed.

"Small HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is less than or equal to 200 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is less than or equal to 1,600 pounds per day.

2. The following are not small HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day.

"Small, rural HMIWI" means any small HMIWI which is located more than 50 miles from the boundary of the nearest Metropolitan Statistical Area and which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste. The 2,000 pounds-per-week limitation does not apply during emissions tests.

"Startup" means the period of time between the activation of the system and the first charge to the unit. For batch HMIWI, startup means the period of time between activation of the system and ignition of the waste.

"Wet scrubber" means an add-on air pollution control device that utilizes an alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics), and to absorb and neutralize acid gases, or both.

9VAC5-40-6020. Standard for particulate matter. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any particulate emissions in excess of the following limits:

1. For small HMIWI: 0.05 grains per dry standard cubic foot (115 milligrams per dry standard cubic meter).

2. For medium HMIWI: 0.03 grains per dry standard cubic foot (69 milligrams per dry standard cubic meter).

3. For large HMIWI: 0.015 grains per dry standard cubic foot (34 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 0.086 grains per dry standard cubic foot (197 milligrams per dry standard cubic meter).

9VAC5-40-6030. Standard for carbon monoxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any carbon monoxide emissions in excess of the following limits:

1. For small HMIWI: 40 parts per million by volume.

2. For medium HMIWI: 40 parts per million by volume.

3. For large HMIWI: 40 parts per million by volume.

4. For small, rural HMIWI: 40 parts per million by volume.

9VAC5-40-6040. Standard for dioxins/furans. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any dioxin/furan emissions in excess of the following limits:

1. For small HMIWI: 55 grains per dry billion standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

2. For medium HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

3. For large HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

4. For small, rural HMIWI: 350 grains per billion dry standard cubic feet (800 nanograms per dry standard cubic meter) total dioxin/furan or 6.6 grains per billion standard cubic meter total TEQ (15 nanograms per dry standard cubic meter TEQ).

9VAC5-40-6050. Standard for hydrogen chloride. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any hydrogen chloride emissions in excess of the following limits:

1. For small HMIWI: 100 parts per million by volume or 93% reduction.

2. For medium HMIWI: 100 parts per million by volume or 93% reduction.

3. For large HMIWI: 100 parts per million by volume or 93% reduction.

4. For small, rural HMIWI: 3,100 parts per million by volume.

9VAC5-40-6060. Standard for sulfur dioxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any sulfur dioxide emissions in excess of the following limits:

1. For small HMIWI: 55 parts per million by volume.

2. For medium HMIWI: 55 parts per million by volume.

3. For large HMIWI: 55 parts per million by volume.

4. For small, rural HMIWI: 55 parts per million by volume.

9VAC5-40-6070. Standard for nitrogen oxides. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any nitrogen oxide emissions in excess of the following limits:

1. For small HMIWI: 250 parts per million by volume.

2. For medium HMIWI: 250 parts per million by volume.

3. For large HMIWI: 250 parts per million by volume.

4. For small, rural HMIWI: 250 parts per million by volume.

9VAC5-40-6080. Standard for lead. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any lead emissions in excess of the following limits:

1. For small HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

2. For medium HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

3. For large HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

4. For small, rural HMIWI: 4.4 grains per thousand dry standard cubic feet (10 milligrams per dry standard cubic meter).

9VAC5-40-6090. Standard for cadmium. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any cadmium emissions in excess of the following limits:

1. For small HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

2. For medium HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

3. For large HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 1.7 grains per thousand dry standard cubic feet (4 milligrams per dry standard cubic meter).

9VAC5-40-6100. Standard for mercury. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any mercury emissions in excess of the following limits:

1. For small HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

2. For medium HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

3. For large HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

4. For small, rural HMIWI: 3.3 grains per thousand dry standard cubic feet (7.5 milligrams per dry standard cubic meter).

9VAC5-40-6110. Standard for visible emissions. (Repealed.)

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions) apply except that the provisions in subsection B of this section apply instead of 9VAC5-40-80.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any visible emissions which exhibit greater than 10% opacity, six-minute block average. Failure to meet the requirements of this section because of the presence of condensed water vapor shall not be a violation of this section.

9VAC5-40-6120. Standard for fugitive dust/emissions. (Repealed.)

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Fugitive Dust/Emissions, Rule 4-1) apply.

9VAC5-40-6130. Standard for odor. (Repealed.)

The provisions of Article 2 (9VAC5-40-130 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Odor, Rule 4-2) apply.

9VAC5-40-6140. Standard for toxic pollutants. (Repealed.)

The provisions of Article 4 (9VAC5-60-200 et seq.) of 9VAC5 Chapter 60 (Emission Standards for Toxic Pollutants, Rule 6-4) apply.

9VAC5-40-6150. HMIWI operator training and qualification. (Repealed.)

A. No owner of an affected facility shall allow the affected facility to operate at any time unless a fully trained and qualified HMIWI operator is accessible, either at the facility or available within one hour. The trained and qualified HMIWI operator may operate the HMIWI directly or be the direct supervisor of one or more HMIWI operators.

B. HMIWI operator training and qualification shall be obtained through a program approved by the board or by completing the requirements included in subsections C through G of this section.

C. Training shall be obtained by completing an HMIWI operator training course that includes, at a minimum, the following provisions:

1. Twenty-four hours of training on the following subjects:

a. Environmental concerns, including pathogen destruction and types of emissions;

b. Basic combustion principles, including products of combustion;

c. Operation of the type of incinerator to be used by the HMIWI operator, including proper startup, waste charging, and shutdown procedures;

d. Combustion controls and monitoring;

e. Operation of air pollution control equipment and factors affecting performance (if applicable);

f. Methods to monitor pollutants (continuous emission monitoring systems and monitoring of HMIWI and air pollution control device operating parameters) and equipment calibration procedures (where applicable);

g. Inspection and maintenance of the HMIWI, air pollution control devices, and continuous emission monitoring systems;

h. Actions to correct malfunctions or conditions that may lead to malfunction;

i. Bottom and fly ash characteristics and handling procedures;

j. Applicable federal, state, and local regulations;

k. Work safety procedures;

l. Pre-startup inspections; and

m. Recordkeeping requirements.

2. An examination designed and administered by the instructor.

3. Reference material distributed to the attendees covering the course topics.

D. Qualification shall be obtained by:

1. Completion of a training course that satisfies the criteria under subsection C of this section; and

2. Either six months experience as an HMIWI operator, six months experience as a direct supervisor of an HMIWI operator, or completion of at least two burn cycles under the observation of two qualified HMIWI operators.

E. Qualification is valid from the date on which the examination is passed or the completion of the required experience, whichever is later.

F. To maintain qualification, the trained and qualified HMIWI operator shall complete and pass an annual review or refresher course of at least four hours covering, at a minimum, the following:

1. Update of regulations;

2. Incinerator operation, including startup and shutdown procedures;

3. Inspection and maintenance;

4. Responses to malfunctions or conditions that may lead to malfunction; and

5. Discussion of operating problems encountered by attendees.

G. A lapsed qualification shall be renewed by one of the following methods:

1. For a lapse of less than three years, the HMIWI operator shall complete and pass a standard annual refresher course described in subsection F of this section.

2. For a lapse of three years or more, the HMIWI operator shall complete and pass a training course with the minimum criteria described in subsection C of this section.

H. The owner of an affected facility shall maintain documentation at the facility that address the following:

1. Summary of the applicable limits under this article;

2. Description of basic combustion theory applicable to an HMIWI;

3. Procedures for receiving, handling, and charging waste;

4. HMIWI startup, shutdown, and malfunction procedures;

5. Procedures for maintaining proper combustion air supply levels;

6. Procedures for operating the HMIWI and associated air pollution control systems within the limits established under this article;

7. Procedures for responding to periodic malfunction or conditions that may lead to malfunction;

8. Procedures for monitoring HMIWI emissions;

9. Reporting and recordkeeping procedures; and

10. Procedures for handling ash.

I. The owner of an affected facility shall establish a program for reviewing the information listed in subsection H of this section annually with each HMIWI operator.

1. The initial review of the information listed in subsection H of this section shall be conducted by January 1, 2001, or prior to assumption of responsibilities affecting HMIWI operation, whichever date is later.

2. Subsequent reviews of the information listed in subsection H of this section shall be conducted annually.

J. The information listed in subsection H of this section shall be kept in a readily accessible location for all HMIWI operators. This information, along with records of training shall be available for inspection by the board.

K. The initial training requirements of this section shall be performed by July 1, 2001.

L. The requirements of subsection B of this section with regard to obtaining operator training qualifications through a program approved by the board may be met by obtaining a license from the Board for Waste Management Facilities Operators. All training and licensing shall be in accordance with Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

M. No owner of an affected facility shall allow the facility to be operated at any time unless a person is on duty who is responsible for the proper operation of the facility and has a license from the Board for Waste Management Facility operators in the correct classification. No provision of this article shall relieve any owner from the responsibility to comply in all respects with the requirements of Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

9VAC5-40-6160. Waste management plans. (Repealed.)

A. The owner of an affected facility shall prepare a waste management plan. The waste management plan shall identify both the feasibility and the approach to separate certain components of solid waste from the health care waste stream in order to reduce the amount of toxic emissions from incinerated waste. A waste management plan may include, but is not limited to, elements such as paper, cardboard, plastics, glass, battery, or metal recycling; or purchasing recycled or recyclable products. A waste management plan may include different goals or approaches for different areas or departments of the facility and need not include new waste management goals for every waste stream. It should identify, where possible, reasonably available additional waste management measures, taking into account the effectiveness of waste management measures already in place, the costs of additional measures, the emission reductions expected to be achieved, and any other environmental or energy impacts they might have. The American Hospital Association publication entitled "An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities" (see 9VAC5-20-21) shall be considered in the development of the waste management plan.

B. The waste management plan shall be submitted to the board no later than 60 days after the initial emissions test as required under 9VAC5-40-6180.

9VAC5-40-6170. Inspections. (Repealed.)

A. The owner shall conduct an initial equipment inspection of each affected small, rural HMIWI by July 1, 2001. At a minimum, each inspection shall include the following:

1. Inspect all burners, pilot assemblies, and pilot sensing devices for proper operation; clean pilot flame sensor, as necessary;

2. Ensure proper adjustment of primary and secondary chamber combustion air, and adjust as necessary;

3. Inspect hinges and door latches, and lubricate as necessary;

4. Inspect dampers, fans, and blowers for proper operation;

5. Inspect HMIWI door and door gaskets for proper sealing;

6. Inspect motors for proper operation;

7. Inspect primary chamber refractory lining; clean and repair or replace lining as necessary;

8. Inspect incinerator shell for corrosion and hot spots;

9. Inspect secondary and tertiary chambers and stack, clean as necessary;

10. Inspect mechanical loader, including limit switches, for proper operation, if applicable;

11. Visually inspect waste bed (grates), and repair or seal, as appropriate;

12. For the burn cycle that follows the inspection, document that the incinerator is operating properly and make any necessary adjustments;

13. Inspect air pollution control device(s) for proper operation, if applicable;

14. Inspect waste heat boiler systems to ensure proper operation, if applicable;

15. Inspect bypass stack components;

16. Ensure proper calibration of thermocouples, sorbent feed systems and any other monitoring equipment; and

17. Generally observe that the equipment is maintained in good operating condition.

B. The owner shall conduct an equipment inspection of each affected small, rural HMIWI annually (no more than 12 months following the previous annual equipment inspection), as outlined in subsection A of this section.

C. Within 10 operating days following an equipment inspection all necessary repairs shall be completed unless the owner obtains written approval from the board establishing a date whereby all necessary repairs of the affected facility shall be completed.

9VAC5-40-6180. Compliance, emissions testing, and monitoring. (Repealed.)

A. The provisions governing compliance, emissions testing, and monitoring shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6120, 9VAC5-40-6130, and 9VAC5-40-6140, the provisions of 9VAC5-40-20 (Compliance), 9VAC5-40-30 (Emission testing) and 9VAC5-40-40 (Monitoring) apply.

2. With regard to the emission limits in 9VAC5-40-6020 through 9VAC5-40-6110, the following provisions apply:

a. 9VAC5-40-20 B, C, D, and E.

b. 40 CFR 60.11.

c. 9VAC5-40-30 D and G.

d. 40 CFR 60.8, with the exception of paragraph (a).

e. 9VAC5-40-40 A and F.

f. 40 CFR 60.13.

g. Subsections B through N of this section.

B. The emission limits under this article apply at all times except during periods of startup, shutdown, or malfunction, provided that no hospital waste or medical/infectious waste is charged to the affected facility during startup, shutdown, or malfunction.

C. Except as provided in subsection L of this section, the owner of an affected facility shall conduct an initial emissions test by December 27, 2001, as required under this section to determine compliance with the emission limits using the procedures and test methods listed in this subsection. The use of the bypass stack during an emissions test shall invalidate the emissions test.

1. All emissions tests shall consist of a minimum of three test runs conducted under representative operating conditions.

2. The minimum sample time shall be one hour per test run unless otherwise indicated.

3. Reference Method 1 shall be used to select the sampling location and number of traverse points.

4. Reference Method 3 or 3A shall be used for gas composition analysis, including measurement of oxygen concentration. Reference Method 3 or 3A shall be used simultaneously with each reference method.

5. The pollutant concentrations shall be adjusted to 7.0% oxygen using the following equation:

C_adj = C_meas (20.9-7)/(20.9-% O₂)

where:

C_adj = pollutant concentration adjusted to 7.0% oxygen;

C_meas = pollutant concentration measured on a dry basis;

(20.9-7) = 20.9% oxygen-7.0% oxygen (defined oxygen correction basis);

20.9 = oxygen concentration in air, percent; and

% O₂ = oxygen concentration measured on a dry basis, percent.

6. Reference Method 5 or 29 be used to measure the particulate matter emissions.

7. Reference Method 9 shall be used to measure stack opacity.

8. Reference Method 10 or 10B shall be used to measure the carbon monoxide emissions.

9. Reference Method 23 shall be used to measure total dioxin/furan emissions. The minimum sample time shall be four hours per test run. If the affected facility has selected the toxic equivalency limits for dioxin/furans, under 9VAC5-40-6040, the following procedures shall be used to determine compliance:

a. Measure the concentration of each dioxin/furan tetra-through octa-congener emitted using Reference Method 23.

b. For each dioxin/furan congener measured in accordance with subdivision 9 a of this subsection, multiply the congener concentration by its corresponding toxic equivalency factor specified in Table 4-44A of this article.

	TABLE 4-44A. TOXIC EQUIVALANCY FACTORS.
	Dioxon/furan congener	Toxic equivalency factor
	2,3,7,8‑tetrachlorinated dibenzo‑p‑dioxin	1
	1,2,3,7,8‑pentachlorinated dibenzo‑p‑dioxin	0.5
	1,2,3,4,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzo‑p‑dioxin	0.01
	octachlorinated dibenzo‑p‑dioxin	0.001
	2,3,7,8‑tetrachlorinated dibenzofuran	0.1
	2,3,4,7,8‑pentachlorinated dibenzofuran	0.5
	1,2,3,7,8‑pentachlorinated dibenzofuran	0.05
	1,2,3,4,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzofuran	0.1
	2,3,4,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzofuran	0.01
	1,2,3,4,7,8,9‑heptachlorinated dibenzofuran	0.01
	Octachlorinated dibenzofuran	0.001

c. Sum the products calculated in accordance with subdivision 9 b of this subsection to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency.

10. Reference Method 26 shall be used to measure hydrogen chloride emissions. If the affected facility has selected the percentage reduction limits for hydrogen chloride under 9VAC5-40-6050, the percentage reduction in hydrogen chloride emissions (% R_HCl) is computed using the following formula:

where:

% R_HCl = percentage reduction of hydrogen chloride emissions achieved;

E_i = hydrogen chloride emission concentration measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = hydrogen chloride emission concentration measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

11. Reference Method 29 shall be used to measure lead, cadmium, and mercury emissions. If the affected facility has selected the percentage reduction limits for metals under 9VAC5-40-6080, 9VAC5-40-6090, or 9VAC5-40-6100, the percentage reduction in emissions (% R_metal) is computed using the following formula:

where:

% R_metal = percentage reduction of metal emission (lead, cadmium, or mercury) achieved;

E_i = metal emission concentration (lead, cadmium, or mercury) measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = metal emission concentration (lead, cadmium, or mercury) measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

D. Following the date on which the initial emissions test is completed or is required to be completed under this section, whichever date comes first, the owner of an affected facility shall:

1. Determine compliance with the opacity limit by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section.

2. Determine compliance with the particulate matter, carbon monoxide, and hydrogen chloride emission limits by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section. If all three emissions tests over a three-year period indicate compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for the subsequent two years. At a minimum, an emissions test for particulate matter, carbon monoxide, and hydrogen chloride shall be conducted every third year (no more than 36 months following the previous emissions test). If an emissions test conducted every third year indicates compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for an additional two years. If any emissions test indicates noncompliance with the respective emission limit, an emissions test for that pollutant shall be conducted annually until all annual emissions tests over a three-year period indicate compliance with the emission limit. The use of the bypass stack during an emissions test shall invalidate the emissions test.

3. Facilities using a continuous emission monitoring system to demonstrate compliance with any of the emission limits under 9VAC5-40-6020 through 9VAC5-40-6100 shall:

a. Determine compliance with the appropriate emission limit(s) using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours (not including startup, shutdown, or malfunction).

b. Operate all continuous emission monitoring systems in accordance with the applicable procedures under Appendices B and F of 40 CFR Part 60.

E. The owner of an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and wet scrubber shall:

1. Establish the appropriate maximum and minimum operating parameters, indicated in Table 4-44B of this article for each control system, as site specific operating parameters during the initial emissions test to determine compliance with the emission limits; and

Titles of Regulations: 9VAC5-10. General Definitions (Rev. J11) (amending 9VAC5-10-20).

9VAC5-20. General Provisions (Rev. J11) (repealing 9VAC5-20-202).

9VAC5-40. Existing Stationary Sources (Rev. J11) (repealing 9VAC5-40-6000 through 9VAC5-40-6230).

Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 12, 2012.

Effective Date: September 27, 2012.

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 (Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia) authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

The original purpose of the regulation was to establish emission standards that required the owners of HMIWIs to limit emissions of organics, metals, and acid gases to a specified level necessary to protect public health and welfare. The regulation was promulgated in order for the Commonwealth to meet the requirements of § 111(d) and 129 of the federal Clean Air Act.

Hospital/Medical/Infectious Waste Incinerators (HMIWI) emissions are a "designated" pollutant under § 111(d) of the Act. Designated pollutants are pollutants that are not 108(a) "criteria" pollutants or § 112(b)(1)(A) "hazardous" pollutants, but for which standards of performance for new sources have been established under § 111(b), new source performance standards (NSPSs). When the EPA establishes an NSPS, states are required to develop standards for existing facilities based on EPA emission guidelines. In conjunction of § 111(d), § 129 and its associated standards were promulgated because EPA determined that incinerator emissions cause or contribute significantly to air pollution, which may reasonably be expected to endanger public health and welfare. The intended effect of the standards and guidelines is to form a basis for state action to develop state regulations controlling HMIWI emissions to the level achievable by the best demonstrated system of continuous emission reduction, considering costs, nonair quality health and environmental impacts, and energy requirements. In order for §§ 111 and 129 to be effected, the specific guidelines are promulgated in the Code of Federal Regulations (CFR) at Subpart Ce of 40 CFR 63. State regulations must be at least as stringent as the guidelines.

The final rule (Subpart Ec of 40 CFR Part 60) was published by EPA in the Federal Register dated September 15, 1997 (62 FR 48348) and applies to existing HMIWIs built on or before June 20, 1996.

Purpose: The Commonwealth of Virginia HMIWI plan and related state rule were approved by EPA in the September 10, 2004, edition of the Federal Register (69 FR 54756) and codified in 40 CFR Part 62, Subpart VV. Since that time, all three designated incinerator facilities in the plan inventory subject to the state rule have been dismantled. On October 6, 2009, EPA promulgated revised HMIWI emission guidelines under 40 CFR Part 60, Subpart Ce, that triggered the need for revised state plan submittals. As a result, on September 13, 2010, the Department of Environmental Quality (DEQ) submitted a negative declaration regarding HMIWI sources within the state and requested EPA's approval of a SIP withdrawal request. In the December 17, 2010, edition of the Federal Register (75 FR 78917), EPA published Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants, Commonwealth of Virginia; Control of Emissions from Existing Hospital/Medical/Infectious Waste Incinerator (HMIWI) Units, Negative Declaration and Withdrawal of EPA Plan Approval. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective February 15, 2011. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 should also be repealed as the term is only used in Article 44 and in no other regulation of the board.

Rationale for Using Fast-Track Process: Virginia requested a finding of negative declaration for HMIWI on September 13, 2010, as all designated incinerator facilities in the plan inventory subject to Article 44 had been dismantled. On December 17, 2010, EPA approved the negative declaration and modified the Code of Federal Regulations accordingly. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective on February 15, 2011. Because there are no sources subject to the regulation and no HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation or for the use of the term "metropolitan statistical area" in 9VAC5-10-20 and 9VAC5-20-202. There is no stakeholder group that is likely to object to the repeal of the regulation. The use of the fast-track rulemaking process is, therefore, appropriate.

Substance: Article 44 is repealed in its entirety. 9VAC5-10 and 9VAC5-20 are revised to remove provisions concerning metropolitan statistical areas, which are used only in Article 44.

Issues: The primary advantage to the public is the removal of unusable regulatory requirements. There are no disadvantages to the public. The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Since the initial adoption of the regulation on Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities in the Commonwealth have been dismantled. In 2009, the U.S. Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. Thus, the State Air Pollution Control Board (Board) proposes to repeal the Commonwealth's HMIWI regulations (9VAC5-40-6000 et seq.). The Board also proposes to repeal the definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 since the term is only used in the HMIWI regulation and no other regulation of the board.

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

Estimated Economic Impact. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, the proposed repeal of this regulation will not affect any individual, business or other entity beyond potentially reducing confusion amongst the public.

Businesses and Entities Affected. Since the facilities that were subject to this regulation have been dismantled, there are no stakeholders that will be affected by the repeal of this regulation.

Localities Particularly Affected. The proposed repeal of this regulation does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of this regulation will not affect small businesses.

Real Estate Development Costs. The proposed repeal of this regulation will not 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 Economic Impact Analysis: The State Air Pollution Control Board of has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Since the initial adoption of Article 44, Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities have been dismantled. In 2009, the Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term metropolitan statistical area in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 are also repealed as the term is only used in Article 44 and no other regulation of the board.

9VAC5-10-20. Terms defined.

"Actual emissions rate" means the actual rate of emissions of a pollutant from an emissions unit. In general actual emissions shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during the most recent two-year period or some other two-year period which is representative of normal source operation. If the board determines that no two-year period is representative of normal source operation, the board shall allow the use of an alternative period of time upon a determination by the board 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.

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

"Affected facility" means, with reference to a stationary source, any part, equipment, facility, installation, apparatus, process or operation to which an emission standard is applicable or any other facility so designated. The term "affected facility" includes any affected source as defined in 40 CFR 63.2.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety; to animal or plant life; or to property; or which unreasonably interfere with the enjoyment by the people of life or property.

"Air quality" means the specific measurement in the ambient air of a particular air pollutant at any given time.

"Air quality control region" means any area designated as such in 9VAC5-20-200.

"Alternative method" means any method of sampling and analyzing for an air pollutant which is not a reference or equivalent method, but which has been demonstrated to the satisfaction of the board, in specific cases, to produce results adequate for its determination of compliance.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Ambient air quality standard" means any primary or secondary standard designated as such in 9VAC5-30 (Ambient Air Quality Standards).

"Board" means the State Air Pollution Control Board or its designated representative.

"Class I area" means any prevention of significant deterioration area (i) in which virtually any deterioration of existing air quality is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class II area" means any prevention of significant deterioration area (i) in which any deterioration of existing air quality beyond that normally accompanying well-controlled growth is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class III area" means any prevention of significant deterioration area (i) in which deterioration of existing air quality to the levels of the ambient air quality standards is permitted and (ii) designated as such in 9VAC5-20-205.

"Continuous monitoring system" means the total equipment used to sample and condition (if applicable), to analyze, and to provide a permanent continuous record of emissions or process parameters.

"Control program" means a plan formulated by the owner of a stationary source to establish pollution abatement goals, including a compliance schedule to achieve such goals. The plan may be submitted voluntarily, or upon request or by order of the board, to ensure compliance by the owner with standards, policies and regulations adopted by the board. The plan shall include system and equipment information and operating performance projections as required by the board for evaluating the probability of achievement. A control program shall contain the following increments of progress:

1. The date by which contracts for emission control system or process modifications are to be awarded, or the date by which orders are to be issued for the purchase of component parts to accomplish emission control or process modification.

2. The date by which the on-site construction or installation of emission control equipment or process change is to be initiated.

3. The date by which the on-site construction or installation of emission control equipment or process modification is to be completed.

4. The date by which final compliance is to be achieved.

"Criteria pollutant" means any pollutant for which an ambient air quality standard is established under 9VAC5-30 (Ambient Air Quality Standards).

"Day" means a 24-hour period beginning at midnight.

"Delayed compliance order" means any order of the board issued after an appropriate hearing to an owner which postpones the date by which a stationary source is required to comply with any requirement contained in the applicable implementation plan.

"Department" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"Director" or "executive director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Dispersion technique"

1. Means any technique which attempts to affect the concentration of a pollutant in the ambient air by:

a. Using that portion of a stack which exceeds good engineering practice stack height;

b. Varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or

c. Increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

2. The preceding sentence does not include:

a. The reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream;

b. The merging of exhaust gas streams where:

(1) The owner demonstrates that the facility was originally designed and constructed with such merged gas streams;

(2) After July 8, 1985, such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant. This exclusion from the definition of "dispersion techniques" shall apply only to the emissions limitation for the pollutant affected by such change in operation; or

(3) Before July 8, 1985, such merging was part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. Where there was an increase in the emissions limitation or, in the event that no emissions limitation was in existence prior to the merging, an increase in the quantity of pollutants actually emitted prior to the merging, the board shall presume that merging was significantly motivated by an intent to gain emissions credit for greater dispersion. Absent a demonstration by the owner that merging was not significantly motivated by such intent, the board shall deny credit for the effects of such merging in calculating the allowable emissions for the source;

c. Smoke management in agricultural or silvicultural prescribed burning programs;

d. Episodic restrictions on residential woodburning and open burning; or

e. Techniques under subdivision 1 c of this definition which increase final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed 5,000 tons per year.

"Emergency" means 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 limitation" means any requirement established by the board which limits the quantity, rate, or concentration of continuous emissions of air pollutants, including any requirements which limit the level of opacity, prescribe equipment, set fuel specifications, or prescribe operation or maintenance procedures to assure continuous emission reduction.

"Emission standard" means any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources) that prescribes an emissions limitation, or other requirements that control air pollution emissions.

"Emissions unit" means any part of a stationary source which emits or would have the potential to emit any air pollutant.

"Equivalent method" means any method of sampling and analyzing for an air pollutant which has been demonstrated to the satisfaction of the board to have a consistent and quantitative relationship to the reference method under specified conditions.

"EPA" means the U.S. Environmental Protection Agency or an authorized representative.

"Excess emissions" means emissions of air pollutant in excess of an emission standard.

"Excessive concentration" is defined for the purpose of determining good engineering practice (GEP) stack height under subdivision 3 of the GEP definition and means:

1. For sources seeking credit for stack height exceeding that established under subdivision 2 of the GEP definition, a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and which contributes to a total concentration due to emissions from all sources that is greater than an ambient air quality standard. For sources subject to the provisions of Article 8 (9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources), an excessive concentration alternatively means a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations under this provision shall be prescribed by the new source performance standard that is applicable to the source category unless the owner demonstrates that this emission rate is infeasible. Where such demonstrations are approved by the board, an alternative emission rate shall be established in consultation with the owner;

2. For sources seeking credit after October 11, 1983, for increases in existing stack heights up to the heights established under subdivision 2 of the GEP definition, either (i) a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects as provided in subdivision 1 of this definition, except that the emission rate specified by any applicable implementation plan (or, in the absence of such a limit, the actual emission rate) shall be used, or (ii) the actual presence of a local nuisance caused by the existing stack, as determined by the board; and

3. For sources seeking credit after January 12, 1979, for a stack height determined under subdivision 2 of the GEP definition where the board requires the use of a field study or fluid model to verify GEP stack height, for sources seeking stack height credit after November 9, 1984, based on the aerodynamic influence of cooling towers, and for sources seeking stack height credit after December 31, 1970, based on the aerodynamic influence of structures not adequately represented by the equations in subdivision 2 of the GEP definition, a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects that is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects.

"Existing source" means any stationary source other than a new source or modified source.

"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 Clean Air Act" means Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"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:

1. Emission standards, alternative emission standards, alternative emissions limitations, and equivalent emissions 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 implementation plan.

5. Limitations and conditions that are part of a section 111(d) or section 111(d)/129 plan.

6. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51.

7. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting 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.

8. Limitations and conditions 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.

9. Individual consent agreements issued pursuant to the legal authority of EPA.

"Good engineering practice" or "GEP," with reference to the height of the stack, means the greater of:

1. 65 meters, measured from the ground-level elevation at the base of the stack;

2. a. For stacks in existence on January 12, 1979, and for which the owner had obtained all applicable permits or approvals required under 9VAC5-80 (Permits for Stationary Sources),

Hg = 2.5H,

provided the owner produces evidence that this equation was actually relied on in establishing an emissions limitation;

b. For all other stacks,

Hg = H + 1.5L,

where:

Hg = good engineering practice stack height, measured from the ground-level elevation at the base of the stack,

H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack,

L = lesser dimension, height or projected width, of nearby structure(s) provided that the board may require the use of a field study or fluid model to verify GEP stack height for the source; or

3. The height demonstrated by a fluid model or a field study approved by the board, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features.

"Hazardous air pollutant" means an air pollutant to which no ambient air quality standard is applicable and which in the judgment of the administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved 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.

"Initial emission test" means the test required by any regulation, permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources), control program, compliance schedule or other enforceable mechanism for determining compliance with new or more stringent emission standards or permit limitations or other emissions limitations requiring the installation or modification of air pollution control equipment or implementation of a control method. Initial emission tests shall be conducted in accordance with 9VAC5-40-30.

"Initial performance test" means the test required by (i) 40 CFR Part 60 for determining compliance with standards of performance, or (ii) a permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources) for determining initial compliance with permit limitations. Initial performance tests shall be conducted in accordance with 9VAC5-50-30 and 9VAC5-60-30.

"Isokinetic sampling" means sampling in which the linear velocity of the gas entering the sampling nozzle is equal to that of the undisturbed gas stream at the sample point.

"Locality" means a city, town, county or other public body created by or pursuant to state law.

"Maintenance area" means any geographic region of the United States previously designated as a nonattainment area and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan and designated as such in 9VAC5-20-203.

"Malfunction" means any sudden failure of air pollution control equipment, of process equipment, or of a process to operate in a normal or usual manner, which failure is not due to intentional misconduct or negligent conduct on the part of the owner or other person. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.

"Metropolitan statistical area" means any area designated as such in 9VAC5-20-202.

"Monitoring device" means the total equipment used to measure and record (if applicable) process parameters.

"Nearby" as used in the definition of good engineering practice (GEP) is defined for a specific structure or terrain feature and:

1. For purposes of applying the formulae provided in subdivision 2 of the GEP definition means that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 km (1/2 mile); and

2. For conducting demonstrations under subdivision 3 of the GEP definition means not greater than 0.8 km (1/2 mile), except that the portion of a terrain feature may be considered to be nearby which falls within a distance of up to 10 times the maximum height (Ht) of the feature, not to exceed two miles if such feature achieves a height (Ht) 0.8 km from the stack that is at least 40% of the GEP stack height determined by the formulae provided in subdivision 2 b of the GEP definition or 26 meters, whichever is greater, as measured from the ground-level elevation at the base of the stack. The height of the structure or terrain feature is measured from the ground-level elevation at the base of the stack.

"Nitrogen oxides" means all oxides of nitrogen except nitrous oxide, as measured by test methods set forth in 40 CFR Part 60.

"Nonattainment area" means any area which is shown by air quality monitoring data or, where such data are not available, which is calculated by air quality modeling (or other methods determined by the board to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant including, but not limited to, areas designated as such in 9VAC5-20-204.

"One hour" means any period of 60 consecutive minutes.

"One-hour period" means any period of 60 consecutive minutes commencing on the hour.

"Organic compound" means any chemical compound of carbon excluding carbon monoxide, carbon dioxide, carbonic disulfide, carbonic acid, metallic carbides, metallic carbonates and ammonium carbonate.

"Owner" means any person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals, who owns, leases, operates, controls or supervises a source.

"Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers.

"Particulate matter emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"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.

"PM₁₀ emissions" means finely divided solid or liquid material, with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"Performance test" means a test for determining emissions from new or modified sources.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Pollutant" means any substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interferes with the enjoyment by the people of life or property.

"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 its effect on emissions is state and federally enforceable.

"Prevention of significant deterioration area" means any area not designated as a nonattainment area in 9VAC5-20-204 for a particular pollutant and designated as such in 9VAC5-20-205.

"Proportional sampling" means sampling at a rate that produces a constant ratio of sampling rate to stack gas flow rate.

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007.02 of the Administrative Process Act, held to afford persons an opportunity to submit views and data relative to a matter on which a decision of the board is pending.

"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.

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.

"Regional director" means the regional director of an administrative region of the Department of Environmental Quality or a designated representative.

"Regulation of the board" means any regulation adopted by the State Air Pollution Control Board under any provision of the Code of Virginia.

"Regulations for the Control and Abatement of Air Pollution" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Reid vapor pressure" means the absolute vapor pressure of volatile crude oil and volatile nonviscous petroleum liquids except liquefied petroleum gases as determined by American Society for Testing and Materials publication, "Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)" (see 9VAC5-20-21).

"Run" means the net period of time during which an emission sample is collected. Unless otherwise specified, a run may be either intermittent or continuous within the limits of good engineering practice.

"Section 111(d) plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with § 111(d)(1) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with § 111 (d)(2) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Section 111(d)/129 plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with §§ 111(d)(1) and 129(b)(2) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with §§ 111(d)(2) and 129(b)(3) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Shutdown" means the cessation of operation of an affected facility for any purpose.

"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.

"Stack" means any point in a source designed to emit solids, liquids or gases into the air, including a pipe or duct, but not including flares.

"Stack in existence" means that the owner had:

1. Begun, or caused to begin, a continuous program of physical on site construction of the stack; or

2. Entered into binding agreements or contractual obligations, which could not be canceled or modified without substantial loss to the owner, to undertake a program of construction of the stack to be completed in a reasonable time.

"Standard conditions" means a temperature of 20°C (68°F) and a pressure of 760 mm of Hg (29.92 inches of Hg).

"Standard of performance" means any provision of 9VAC5-50 (New and Modified Stationary Sources) which prescribes an emissions limitation or other requirements that control air pollution emissions.

"Startup" means the setting in operation of an affected facility for any purpose.

"State enforceable" means all limitations and conditions which are enforceable by the board or department, including, but not limited to, those requirements developed pursuant to 9VAC5-20-110; requirements within any applicable regulation, order, consent agreement or variance; and any permit requirements established pursuant to 9VAC5-80 (Permits for Stationary Sources).

"State Implementation Plan" means the plan, including the most recent revision thereof, which has been approved or promulgated by the administrator, U.S. Environmental Protection Agency, under § 110 of the federal Clean Air Act, and which implements the requirements of § 110.

"Stationary source" means any building, structure, facility or installation which emits or may emit any 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) 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 (see 9VAC5-20-21).

"These regulations" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Total suspended particulate (TSP)" means particulate matter as measured by the reference method described in Appendix B of 40 CFR Part 50.

"True vapor pressure" means the equilibrium partial pressure exerted by a petroleum liquid as determined in accordance with methods described in American Petroleum Institute (API) publication, "Evaporative Loss from External Floating-Roof Tanks" (see 9VAC5-20-21). The API procedure may not be applicable to some high viscosity or high pour crudes. Available estimates of true vapor pressure may be used in special cases such as these.

"Urban area" means any area consisting of a core city with a population of 50,000 or more plus any surrounding localities with a population density of 80 persons per square mile and designated as such in 9VAC5-20-201.

"Vapor pressure," except where specific test methods are specified, means true vapor pressure, whether measured directly, or determined from Reid vapor pressure by use of the applicable nomograph in American Petroleum Institute publication, "Evaporative Loss from Floating-Roof Tanks" (see 9VAC5-20-21).

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Volatile organic compound" means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions.

1. This includes any such organic compounds which have been determined to have negligible photochemical reactivity other than the following:

a. Methane;

b. Ethane;

c. Methylene chloride (dichloromethane);

d. 1,1,1-trichloroethane (methyl chloroform);

e. 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113);

f. Trichlorofluoromethane (CFC-11);

g. Dichlorodifluoromethane (CFC-12);

h. Chlorodifluoromethane (H CFC-22);

i. Trifluoromethane (H FC-23);

j. 1,2-dichloro 1,1,2,2,-tetrafluoroethane (CFC-114);

k. Chloropentafluoroethane (CFC-115);

l. 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123);

m. 1,1,1,2-tetrafluoroethane (HFC-134a);

n. 1,1-dichloro 1-fluoroethane (HCFC-141b);

o. 1-chloro 1,1-difluoroethane (HCFC-142b);

p. 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124);

q. Pentafluoroethane (HFC-125);

r. 1,1,2,2-tetrafluoroethane (HFC-134);

s. 1,1,1-trifluoroethane (HFC-143a);

t. 1,1-difluoroethane (HFC-152a);

u. Parachlorobenzotrifluoride (PCBTF);

v. Cyclic, branched, or linear completely methylated siloxanes;

w. Acetone;

x. Perchloroethylene (tetrachloroethylene);

y. 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca);

z. 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb);

aa. 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee);

bb. Difluoromethane (HFC-32);

cc. Ethylfluoride (HFC-161);

dd. 1,1,1,3,3,3-hexafluoropropane (HFC-236fa);

ee. 1,1,2,2,3-pentafluoropropane (HFC-245ca);

ff. 1,1,2,3,3-pentafluoropropane (HFC-245ea);

gg. 1,1,1,2,3-pentafluoropropane (HFC-245eb);

hh. 1,1,1,3,3-pentafluoropropane (HFC-245fa);

ii. 1,1,1,2,3,3-hexafluoropropane (HFC-236ea);

jj. 1,1,1,3,3-pentafluorobutane (HFC-365mfc);

kk. Chlorofluoromethane (HCFC-31);

ll. 1 chloro-1-fluoroethane (HCFC-151a);

mm. 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a);

nn. 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C₄F₉OCH₃ or HFE-7100);

oo. 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂ OCH₃);

pp. 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C₄F₉ OC₂H₅ or HFE-7200);

qq. 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂OC₂H₅);

rr. Methyl acetate; ss. 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C₃F₇OCH₃) (HFE-7000);

tt. 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500);

uu. 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea);

vv. methyl formate (HCOOCH₃);

ww. (1) 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300);

xx. propylene carbonate;

yy. dimethyl carbonate; and

zz. Perfluorocarbon compounds which fall into these classes:

(1) Cyclic, branched, or linear, completely fluorinated alkanes;

(2) Cyclic, branched, or linear, completely fluorinated ethers with no unsaturations;

(3) Cyclic, branched, or linear, completely fluorinated tertiary amines with no unsaturations; and

(4) Sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

2. For purposes of determining compliance with emissions standards, volatile organic compounds shall be measured by the appropriate reference method in accordance with the provisions of 9VAC5-40-30 or 9VAC5-50-30, as applicable. Where such a method also measures compounds with negligible photochemical reactivity, these negligibly reactive compounds may be excluded as a volatile organic compound if the amount of such compounds is accurately quantified, and such exclusion is approved by the board.

3. As a precondition to excluding these compounds as volatile organic compounds or at any time thereafter, the board may require an owner to provide monitoring or testing methods and results demonstrating, to the satisfaction of the board, the amount of negligibly reactive compounds in the emissions of the source.

4. Exclusion of the above compounds in this definition in effect exempts such compounds from the provisions of emission standards for volatile organic compounds. The compounds are exempted on the basis of being so inactive that they will not contribute significantly to the formation of ozone in the troposphere. However, this exemption does not extend to other properties of the exempted compounds which, at some future date, may require regulation and limitation of their use in accordance with requirements of the federal Clean Air Act.

5. The following compound is a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements that apply to VOCs and shall be uniquely identified in emission reports, but is not a VOC for purposes of VOC emission standards, VOC emissions limitations, or VOC content requirements: t-butyl acetate.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-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.

9VAC5-20-202. Metropolitan statistical areas. (Repealed.)

Metropolitan Statistical Areas are geographically defined as follows:

TITLE	GEOGRAPHICAL AREA
Bristol MSA	Bristol City Scott County Washington County
Charlottesville MSA	Charlottesville City Albemarle County Fluvanna County Greene County
Danville MSA	Danville City Pittsylvania County
Lynchburg MSA	Bedford City Lynchburg City Amherst County Bedford County Campbell County
Norfolk-Virginia Beach-Newport News MSA	Chesapeake City Norfolk City Portsmouth City Suffolk City Virginia Beach City Hampton City Newport News City Poquoson City Williamsburg City Gloucester County Isle of Wight County James City County Mathews County York County
Richmond-Petersburg MSA	Richmond City Colonial Heights City Hopewell City Petersburg City Charles City County Chesterfield County Goochland County Hanover County Henrico County New Kent County Powhatan County Prince George County Dinwiddie County
Roanoke MSA	Roanoke City Salem City Botetourt County Roanoke County
National Capital MSA	Alexandria City Fairfax City Falls Church City Fredericksburg City Manassas City Manassas Park City Arlington County Clarke County Culpeper County Fairfax County Fauquier County King George County Loudoun County Prince William County Spottsylvania County Stafford County Warren County

Article 44
Emission Standards for Hospital/Medical/Infectious Waste Incinerators (Rule 4-44)

9VAC5-40-6000. Applicability and designation of affected facility. (Repealed.)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each individual HMIWI for which construction was commenced on or before June 20, 1996.

B. The provisions of this article apply throughout the Commonwealth of Virginia.

C. Exempted from the provisions of this article are the following:

1. Combustors during periods when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned, provided the owner:

a. Notifies the board of an exemption claim; and

b. Keeps records on a calendar quarter basis of the periods of time when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned.

2. Any co-fired combustor if the owner of the co-fired combustor:

a. Notifies the board of an exemption claim;

b. Provides an estimate of the relative weight of hospital waste, medical/infectious waste, and other fuels and or wastes to be combusted; and

c. Keeps records on a calendar quarter basis of the weight of hospital waste and medical/infectious waste combusted, and the weight of all other fuels and wastes combusted at the co-fired combustor.

3. Any combustor required to have a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.).

4. Any combustor which meets the applicability requirements under subpart Ea or Eb of 40 CFR Part 60 (standards for certain municipal waste combustors).

5. Any pyrolysis unit.

6. Cement kilns firing hospital waste and medical/infectious waste or both.

D. The provisions of this article do not apply to affected facilities subject to the standards in 9VAC5 Chapter 40, Article 54 (9VAC5-40-7950 et seq.).

E. Physical or operational changes made to an existing HMIWI unit solely for the purpose of complying with this article are not considered a modification and do not result in an existing HMIWI unit becoming subject to the provisions of subpart Ec of 40 CFR Part 60 (see 40 CFR 60.50c).

F. Beginning September 15, 2000, affected facilities subject to this article shall operate pursuant to a federal operating permit.

G. The provisions of 40 CFR Part 60 cited in this article are applicable only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50.

H. The requirement of subdivision C 3 of this section with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC20 Chapter 60.

9VAC5-40-6010. Definitions. (Repealed.)

A. For the purpose of 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 meanings given them in subsection C of this section.

B. As used in this article, all terms not defined here shall have the meanings given them in 9VAC5 Chapter 10, unless otherwise required by context.

C. Terms defined.

"Batch HMIWI" means an HMIWI that is designed such that neither waste charging nor ash removal can occur during combustion.

"Biologicals" means preparations made from living organisms and their products, including vaccines, cultures, etc., intended for use in diagnosing, immunizing, or treating humans or animals or in research pertaining thereto.

"Blood products" means any product derived from human blood, including but not limited to blood plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon, etc.

"Body fluids" means any liquid emanating or derived from humans and not limited to blood; dialysate; amniotic, cerebrospinal, synovial, pleural, peritoneal and pericardial fluids; and semen and vaginal secretions.

"Bypass stack" means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

"Chemotherapeutic waste" means waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells.

"Co-fired combustor" means a unit combusting hospital waste and medical/infectious waste or both with other fuels or wastes (e.g., coal, municipal solid waste) and subject to an enforceable requirement limiting the unit to combusting a fuel feed stream, 10% or less of the weight of which is comprised, in aggregate, of hospital waste and medical/infectious waste as measured on a calendar quarter basis. For purposes of this definition, pathological waste, chemotherapeutic waste, and low-level radioactive waste are considered "other" wastes when calculating the percentage of hospital waste and medical/infectious waste combusted.

"Combustor" means any type of stationary equipment in which solid, liquid or gaseous fuels and refuse are burned (including, but not limited to, furnaces, ovens, and kilns) for the primary purpose of destroying matter or reducing the volume, or both, of the waste by removing combustible matter.

"Commenced" means an owner has undertaken a continuous program of construction or modification or that an owner has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification.

"Compliance schedule" means a legally enforceable schedule specifying a date or dates by which a source must comply with specific emission limits contained in this article or with any increments of progress to achieve such compliance.

"Construction" means fabrication, erection, or installation of an affected facility.

"Continuous emission monitoring system" means a monitoring system for continuously measuring and recording the emissions of a pollutant from an affected facility.

"Continuous HMIWI" means an HMIWI that is designed to allow waste charging and ash removal during combustion.

"Dioxins/furans" means the combined emissions of tetra-through octa-chlorinated dibenzo-para-dioxins and dibenzofurans, as measured by Reference Method 23.

"Dry scrubber" means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the HMIWI exhaust stream forming a dry powder material.

"Fabric filter" means an add-on air pollution control system that removes particulate matter and nonvaporous metals emissions by passing flue gas through filter bags.

"Facilities manager" means the individual in charge of purchasing, maintaining, and operating the HMIWI or the owner's representative responsible for the management of the HMIWI. Alternative titles may include director of facilities or vice president of support services.

"Federal operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of Part II of 9VAC5 Chapter 80.

"High-air phase" means the stage of the batch operating cycle when the primary chamber reaches and maintains maximum operating temperatures.

"Hospital" means any facility which has an organized medical staff, maintains at least six inpatient beds, and where the primary function of the institution is to provide diagnostic and therapeutic patient services and continuous nursing care primarily to human inpatients who are not related and who stay on average in excess of 24 hours per admission. This definition does not include facilities maintained for the sole purpose of providing nursing or convalescent care to human patients who generally are not acutely ill but who require continuing medical supervision.

"Hospital/medical/infectious waste incinerator" or "HMIWI" or "HMIWI unit" means any device that combusts any amount of hospital waste and medical/infectious waste or both.

"Hospital/medical/infectious waste incinerator operator" or "HMIWI operator" means any person who operates, controls or supervises the day-to-day operation of an HMIWI.

"Hospital waste" means discards generated at a hospital, except unused items returned to the manufacturer. The definition of hospital waste does not include human corpses, remains, and anatomical parts that are intended for interment or cremation.

"Infectious agent" means any organism (such as a virus or bacteria) that is capable of being communicated by invasion and multiplication in body tissues and capable of causing disease or adverse health impacts in humans.

"Intermittent HMIWI" means an HMIWI that is designed to allow waste charging, but not ash removal, during combustion.

"Large HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day.

2. The following are not large HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is less than or equal to 4,000 pounds per day.

"Low-level radioactive waste" means waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 USC § 2014(e)(2)).

"Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. During periods of malfunction the HMIWI operator shall operate within established parameters as much as possible, and monitoring of all applicable operating parameters shall continue until all waste has been combusted or until the malfunction ceases, whichever comes first.

"Maximum charge rate" means:

1. For continuous and intermittent HMIWI, 110% of the lowest three-hour average charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

2. For batch HMIWI, 110% of the lowest daily charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Maximum design waste burning capacity" means:

1. For intermittent and continuous HMIWI,

C = P_V X 15,000/8,500

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

15,000 = primary chamber heat release rate factor, Btu/ft³/hr

8,500 = standard waste heating value, Btu/lb;

2. For batch HMIWI,

C = P_V X 4.5/8

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

4.5 = waste density, lb/ft³

8 = typical hours of operation of a batch HMIWI, hours.

"Maximum fabric filter inlet temperature" means 110% of the lowest three-hour average temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Maximum flue gas temperature" means 110% of the lowest three-hour average temperature at the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Medical/infectious waste" means any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals that is listed in subdivisions 1 through 9 of this definition. The definition of medical/infectious waste does not include hazardous waste identified or listed under the regulations in 40 CFR Part 261; household waste, as defined in 40 CFR 261.4(b)(1); ash from incineration of medical/infectious waste, once the incineration process has been completed; human corpses, remains, and anatomical parts that are intended for interment or cremation; and domestic sewage materials identified in 40 CFR 261.4(a)(1).

1. Cultures and stocks of infectious agents and associated biologicals, including: cultures from medical and pathological laboratories; cultures and stocks of infectious agents from research and industrial laboratories; wastes from the production of biologicals; discarded live and attenuated vaccines; and culture dishes and devices used to transfer, inoculate, and mix cultures.

2. Human pathological waste, including tissues, organs, and body parts and body fluids that are removed during surgery or autopsy, or other medical procedures, and specimens of body fluids and their containers.

3. Human blood and blood products, regardless of whether containerized, including:

a. Liquid human blood;

b. Products of blood;

c. Items containing unabsorbed or free-flowing blood;

d. Items saturated or dripping or both with human blood; or

e. Items that were saturated or dripping or both with human blood that are now caked with dried human blood; including serum, plasma, and other blood components, and their containers, which were used or intended for use in either patient care, testing and laboratory analysis or the development of pharmaceuticals. Intravenous bags are also included in this category.

4. Regardless of the presence of infectious agents, sharps that have been used in animal or human patient care or treatment or in medical, research, or industrial laboratories, including hypodermic needles, syringes (with or without the attached needle), pasteur pipettes, scalpel blades, blood vials, needles with attached tubing, and culture dishes. Also included are other types of broken or unbroken glassware that may have been in contact with infectious agents, such as used slides and cover slips.

5. Animal waste including contaminated animal carcasses, body parts, and bedding of animals that were known to have been exposed to infectious agents during research (including research in veterinary hospitals), production of biologicals or testing of pharmaceuticals.

6. Isolation wastes including biological waste and discarded materials contaminated with blood, excretions, exudates, or secretions from humans who are isolated to protect others from certain highly communicable diseases, or isolated animals known to be infected with highly communicable diseases.

7. Unused sharps including the following unused, discarded sharps: hypodermic needles, suture needles, syringes, and scalpel blades.

8. Any waste that is contaminated or mixed with any waste listed in subdivisions 1 through 7 of this definition.

9. Any residue or contaminated soil, waste, or other debris resulting from the cleaning of a spill of any waste listed in subdivisions 1 through 8 of this definition.

"Medium HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 200 pounds per hour but less than or equal to 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour but less than or equal to 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day but less than or equal to 4,000 pounds per day.

2. The following are not medium HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour or more than 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day or less than or equal to 1,600 pounds per day.

"Minimum dioxin/furan sorbent flow rate" means 90% of the highest three-hour average dioxin/furan sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Minimum mercury sorbent flow rate" means 90% of the highest three-hour average mercury sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Minimum hydrogen chloride sorbent flow rate" means 90% of the highest three-hour average hydrogen chloride sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum horsepower or amperage" means 90% of the highest three-hour average horsepower or amperage to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the applicable emission limits.

"Minimum pressure drop across the wet scrubber" means 90% of the highest three-hour average pressure drop across the wet scrubber particulate matter control device (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter emission limit.

"Minimum scrubber liquor flow rate" means 90% of the highest three-hour average liquor flow rate at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Minimum scrubber liquor pH" means 90% of the highest three-hour average liquor pH at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum secondary chamber temperature" means 90% of the highest three-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter, carbon monoxide, or dioxin/furan emission limits.

"Modification" means any change to an HMIWI unit after March 16, 1998, such that:

1. The cumulative costs of the modifications, over the life of the unit, exceed 50% of the original cost of the construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) updated to current costs; or

2. The change involves a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under § 111 or § 129 of the federal Clean Air Act.

"Operating day" means a 24-hour period between 12:00 midnight and the following midnight during which any amount of hospital waste or medical/infectious waste is combusted at any time in the HMIWI.

"Operation" means the period during which waste is combusted in the incinerator excluding periods of startup or shutdown.

"Particulate matter" means the total particulate matter emitted from an HMIWI as measured by Reference Method 5 or Reference Method 29.

"Pathological waste" means waste material consisting of only human or animal remains, anatomical parts, or tissue, the bags and containers used to collect and transport the waste material, and animal bedding (if applicable).

"Primary chamber" means the chamber in an HMIWI that receives waste material, in which the waste is ignited, and from which ash is removed.

"Pyrolysis" means the endothermic gasification of hospital waste or medical/infectious waste or both using external energy.

"Secondary chamber" means a component of the HMIWI that receives combustion gases from the primary chamber and in which the combustion process is completed.

"Shutdown" means the period of time after all waste has been combusted in the primary chamber. For continuous HMIWI, shutdown shall commence no less than two hours after the last charge to the incinerator. For intermittent HMIWI, shutdown shall commence no less than four hours after the last charge to the incinerator. For batch HMIWI, shutdown shall commence no less than five hours after the high-air phase of combustion has been completed.

"Small HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is less than or equal to 200 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is less than or equal to 1,600 pounds per day.

2. The following are not small HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day.

"Small, rural HMIWI" means any small HMIWI which is located more than 50 miles from the boundary of the nearest Metropolitan Statistical Area and which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste. The 2,000 pounds-per-week limitation does not apply during emissions tests.

"Startup" means the period of time between the activation of the system and the first charge to the unit. For batch HMIWI, startup means the period of time between activation of the system and ignition of the waste.

"Wet scrubber" means an add-on air pollution control device that utilizes an alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics), and to absorb and neutralize acid gases, or both.

9VAC5-40-6020. Standard for particulate matter. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any particulate emissions in excess of the following limits:

1. For small HMIWI: 0.05 grains per dry standard cubic foot (115 milligrams per dry standard cubic meter).

2. For medium HMIWI: 0.03 grains per dry standard cubic foot (69 milligrams per dry standard cubic meter).

3. For large HMIWI: 0.015 grains per dry standard cubic foot (34 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 0.086 grains per dry standard cubic foot (197 milligrams per dry standard cubic meter).

9VAC5-40-6030. Standard for carbon monoxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any carbon monoxide emissions in excess of the following limits:

1. For small HMIWI: 40 parts per million by volume.

2. For medium HMIWI: 40 parts per million by volume.

3. For large HMIWI: 40 parts per million by volume.

4. For small, rural HMIWI: 40 parts per million by volume.

9VAC5-40-6040. Standard for dioxins/furans. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any dioxin/furan emissions in excess of the following limits:

1. For small HMIWI: 55 grains per dry billion standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

2. For medium HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

3. For large HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

4. For small, rural HMIWI: 350 grains per billion dry standard cubic feet (800 nanograms per dry standard cubic meter) total dioxin/furan or 6.6 grains per billion standard cubic meter total TEQ (15 nanograms per dry standard cubic meter TEQ).

9VAC5-40-6050. Standard for hydrogen chloride. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any hydrogen chloride emissions in excess of the following limits:

1. For small HMIWI: 100 parts per million by volume or 93% reduction.

2. For medium HMIWI: 100 parts per million by volume or 93% reduction.

3. For large HMIWI: 100 parts per million by volume or 93% reduction.

4. For small, rural HMIWI: 3,100 parts per million by volume.

9VAC5-40-6060. Standard for sulfur dioxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any sulfur dioxide emissions in excess of the following limits:

1. For small HMIWI: 55 parts per million by volume.

2. For medium HMIWI: 55 parts per million by volume.

3. For large HMIWI: 55 parts per million by volume.

4. For small, rural HMIWI: 55 parts per million by volume.

9VAC5-40-6070. Standard for nitrogen oxides. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any nitrogen oxide emissions in excess of the following limits:

1. For small HMIWI: 250 parts per million by volume.

2. For medium HMIWI: 250 parts per million by volume.

3. For large HMIWI: 250 parts per million by volume.

4. For small, rural HMIWI: 250 parts per million by volume.

9VAC5-40-6080. Standard for lead. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any lead emissions in excess of the following limits:

1. For small HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

2. For medium HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

3. For large HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

4. For small, rural HMIWI: 4.4 grains per thousand dry standard cubic feet (10 milligrams per dry standard cubic meter).

9VAC5-40-6090. Standard for cadmium. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any cadmium emissions in excess of the following limits:

1. For small HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

2. For medium HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

3. For large HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 1.7 grains per thousand dry standard cubic feet (4 milligrams per dry standard cubic meter).

9VAC5-40-6100. Standard for mercury. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any mercury emissions in excess of the following limits:

1. For small HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

2. For medium HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

3. For large HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

4. For small, rural HMIWI: 3.3 grains per thousand dry standard cubic feet (7.5 milligrams per dry standard cubic meter).

9VAC5-40-6110. Standard for visible emissions. (Repealed.)

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions) apply except that the provisions in subsection B of this section apply instead of 9VAC5-40-80.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any visible emissions which exhibit greater than 10% opacity, six-minute block average. Failure to meet the requirements of this section because of the presence of condensed water vapor shall not be a violation of this section.

9VAC5-40-6120. Standard for fugitive dust/emissions. (Repealed.)

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Fugitive Dust/Emissions, Rule 4-1) apply.

9VAC5-40-6130. Standard for odor. (Repealed.)

The provisions of Article 2 (9VAC5-40-130 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Odor, Rule 4-2) apply.

9VAC5-40-6140. Standard for toxic pollutants. (Repealed.)

The provisions of Article 4 (9VAC5-60-200 et seq.) of 9VAC5 Chapter 60 (Emission Standards for Toxic Pollutants, Rule 6-4) apply.

9VAC5-40-6150. HMIWI operator training and qualification. (Repealed.)

A. No owner of an affected facility shall allow the affected facility to operate at any time unless a fully trained and qualified HMIWI operator is accessible, either at the facility or available within one hour. The trained and qualified HMIWI operator may operate the HMIWI directly or be the direct supervisor of one or more HMIWI operators.

B. HMIWI operator training and qualification shall be obtained through a program approved by the board or by completing the requirements included in subsections C through G of this section.

C. Training shall be obtained by completing an HMIWI operator training course that includes, at a minimum, the following provisions:

1. Twenty-four hours of training on the following subjects:

a. Environmental concerns, including pathogen destruction and types of emissions;

b. Basic combustion principles, including products of combustion;

c. Operation of the type of incinerator to be used by the HMIWI operator, including proper startup, waste charging, and shutdown procedures;

d. Combustion controls and monitoring;

e. Operation of air pollution control equipment and factors affecting performance (if applicable);

f. Methods to monitor pollutants (continuous emission monitoring systems and monitoring of HMIWI and air pollution control device operating parameters) and equipment calibration procedures (where applicable);

g. Inspection and maintenance of the HMIWI, air pollution control devices, and continuous emission monitoring systems;

h. Actions to correct malfunctions or conditions that may lead to malfunction;

i. Bottom and fly ash characteristics and handling procedures;

j. Applicable federal, state, and local regulations;

k. Work safety procedures;

l. Pre-startup inspections; and

m. Recordkeeping requirements.

2. An examination designed and administered by the instructor.

3. Reference material distributed to the attendees covering the course topics.

D. Qualification shall be obtained by:

1. Completion of a training course that satisfies the criteria under subsection C of this section; and

2. Either six months experience as an HMIWI operator, six months experience as a direct supervisor of an HMIWI operator, or completion of at least two burn cycles under the observation of two qualified HMIWI operators.

E. Qualification is valid from the date on which the examination is passed or the completion of the required experience, whichever is later.

F. To maintain qualification, the trained and qualified HMIWI operator shall complete and pass an annual review or refresher course of at least four hours covering, at a minimum, the following:

1. Update of regulations;

2. Incinerator operation, including startup and shutdown procedures;

3. Inspection and maintenance;

4. Responses to malfunctions or conditions that may lead to malfunction; and

5. Discussion of operating problems encountered by attendees.

G. A lapsed qualification shall be renewed by one of the following methods:

1. For a lapse of less than three years, the HMIWI operator shall complete and pass a standard annual refresher course described in subsection F of this section.

2. For a lapse of three years or more, the HMIWI operator shall complete and pass a training course with the minimum criteria described in subsection C of this section.

H. The owner of an affected facility shall maintain documentation at the facility that address the following:

1. Summary of the applicable limits under this article;

2. Description of basic combustion theory applicable to an HMIWI;

3. Procedures for receiving, handling, and charging waste;

4. HMIWI startup, shutdown, and malfunction procedures;

5. Procedures for maintaining proper combustion air supply levels;

6. Procedures for operating the HMIWI and associated air pollution control systems within the limits established under this article;

7. Procedures for responding to periodic malfunction or conditions that may lead to malfunction;

8. Procedures for monitoring HMIWI emissions;

9. Reporting and recordkeeping procedures; and

10. Procedures for handling ash.

I. The owner of an affected facility shall establish a program for reviewing the information listed in subsection H of this section annually with each HMIWI operator.

1. The initial review of the information listed in subsection H of this section shall be conducted by January 1, 2001, or prior to assumption of responsibilities affecting HMIWI operation, whichever date is later.

2. Subsequent reviews of the information listed in subsection H of this section shall be conducted annually.

J. The information listed in subsection H of this section shall be kept in a readily accessible location for all HMIWI operators. This information, along with records of training shall be available for inspection by the board.

K. The initial training requirements of this section shall be performed by July 1, 2001.

L. The requirements of subsection B of this section with regard to obtaining operator training qualifications through a program approved by the board may be met by obtaining a license from the Board for Waste Management Facilities Operators. All training and licensing shall be in accordance with Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

M. No owner of an affected facility shall allow the facility to be operated at any time unless a person is on duty who is responsible for the proper operation of the facility and has a license from the Board for Waste Management Facility operators in the correct classification. No provision of this article shall relieve any owner from the responsibility to comply in all respects with the requirements of Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

9VAC5-40-6160. Waste management plans. (Repealed.)

A. The owner of an affected facility shall prepare a waste management plan. The waste management plan shall identify both the feasibility and the approach to separate certain components of solid waste from the health care waste stream in order to reduce the amount of toxic emissions from incinerated waste. A waste management plan may include, but is not limited to, elements such as paper, cardboard, plastics, glass, battery, or metal recycling; or purchasing recycled or recyclable products. A waste management plan may include different goals or approaches for different areas or departments of the facility and need not include new waste management goals for every waste stream. It should identify, where possible, reasonably available additional waste management measures, taking into account the effectiveness of waste management measures already in place, the costs of additional measures, the emission reductions expected to be achieved, and any other environmental or energy impacts they might have. The American Hospital Association publication entitled "An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities" (see 9VAC5-20-21) shall be considered in the development of the waste management plan.

B. The waste management plan shall be submitted to the board no later than 60 days after the initial emissions test as required under 9VAC5-40-6180.

9VAC5-40-6170. Inspections. (Repealed.)

A. The owner shall conduct an initial equipment inspection of each affected small, rural HMIWI by July 1, 2001. At a minimum, each inspection shall include the following:

1. Inspect all burners, pilot assemblies, and pilot sensing devices for proper operation; clean pilot flame sensor, as necessary;

2. Ensure proper adjustment of primary and secondary chamber combustion air, and adjust as necessary;

3. Inspect hinges and door latches, and lubricate as necessary;

4. Inspect dampers, fans, and blowers for proper operation;

5. Inspect HMIWI door and door gaskets for proper sealing;

6. Inspect motors for proper operation;

7. Inspect primary chamber refractory lining; clean and repair or replace lining as necessary;

8. Inspect incinerator shell for corrosion and hot spots;

9. Inspect secondary and tertiary chambers and stack, clean as necessary;

10. Inspect mechanical loader, including limit switches, for proper operation, if applicable;

11. Visually inspect waste bed (grates), and repair or seal, as appropriate;

12. For the burn cycle that follows the inspection, document that the incinerator is operating properly and make any necessary adjustments;

13. Inspect air pollution control device(s) for proper operation, if applicable;

14. Inspect waste heat boiler systems to ensure proper operation, if applicable;

15. Inspect bypass stack components;

16. Ensure proper calibration of thermocouples, sorbent feed systems and any other monitoring equipment; and

17. Generally observe that the equipment is maintained in good operating condition.

B. The owner shall conduct an equipment inspection of each affected small, rural HMIWI annually (no more than 12 months following the previous annual equipment inspection), as outlined in subsection A of this section.

C. Within 10 operating days following an equipment inspection all necessary repairs shall be completed unless the owner obtains written approval from the board establishing a date whereby all necessary repairs of the affected facility shall be completed.

9VAC5-40-6180. Compliance, emissions testing, and monitoring. (Repealed.)

A. The provisions governing compliance, emissions testing, and monitoring shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6120, 9VAC5-40-6130, and 9VAC5-40-6140, the provisions of 9VAC5-40-20 (Compliance), 9VAC5-40-30 (Emission testing) and 9VAC5-40-40 (Monitoring) apply.

2. With regard to the emission limits in 9VAC5-40-6020 through 9VAC5-40-6110, the following provisions apply:

a. 9VAC5-40-20 B, C, D, and E.

b. 40 CFR 60.11.

c. 9VAC5-40-30 D and G.

d. 40 CFR 60.8, with the exception of paragraph (a).

e. 9VAC5-40-40 A and F.

f. 40 CFR 60.13.

g. Subsections B through N of this section.

B. The emission limits under this article apply at all times except during periods of startup, shutdown, or malfunction, provided that no hospital waste or medical/infectious waste is charged to the affected facility during startup, shutdown, or malfunction.

C. Except as provided in subsection L of this section, the owner of an affected facility shall conduct an initial emissions test by December 27, 2001, as required under this section to determine compliance with the emission limits using the procedures and test methods listed in this subsection. The use of the bypass stack during an emissions test shall invalidate the emissions test.

1. All emissions tests shall consist of a minimum of three test runs conducted under representative operating conditions.

2. The minimum sample time shall be one hour per test run unless otherwise indicated.

3. Reference Method 1 shall be used to select the sampling location and number of traverse points.

4. Reference Method 3 or 3A shall be used for gas composition analysis, including measurement of oxygen concentration. Reference Method 3 or 3A shall be used simultaneously with each reference method.

5. The pollutant concentrations shall be adjusted to 7.0% oxygen using the following equation:

C_adj = C_meas (20.9-7)/(20.9-% O₂)

where:

C_adj = pollutant concentration adjusted to 7.0% oxygen;

C_meas = pollutant concentration measured on a dry basis;

(20.9-7) = 20.9% oxygen-7.0% oxygen (defined oxygen correction basis);

20.9 = oxygen concentration in air, percent; and

% O₂ = oxygen concentration measured on a dry basis, percent.

6. Reference Method 5 or 29 be used to measure the particulate matter emissions.

7. Reference Method 9 shall be used to measure stack opacity.

8. Reference Method 10 or 10B shall be used to measure the carbon monoxide emissions.

9. Reference Method 23 shall be used to measure total dioxin/furan emissions. The minimum sample time shall be four hours per test run. If the affected facility has selected the toxic equivalency limits for dioxin/furans, under 9VAC5-40-6040, the following procedures shall be used to determine compliance:

a. Measure the concentration of each dioxin/furan tetra-through octa-congener emitted using Reference Method 23.

b. For each dioxin/furan congener measured in accordance with subdivision 9 a of this subsection, multiply the congener concentration by its corresponding toxic equivalency factor specified in Table 4-44A of this article.

	TABLE 4-44A. TOXIC EQUIVALANCY FACTORS.
	Dioxon/furan congener	Toxic equivalency factor
	2,3,7,8‑tetrachlorinated dibenzo‑p‑dioxin	1
	1,2,3,7,8‑pentachlorinated dibenzo‑p‑dioxin	0.5
	1,2,3,4,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzo‑p‑dioxin	0.01
	octachlorinated dibenzo‑p‑dioxin	0.001
	2,3,7,8‑tetrachlorinated dibenzofuran	0.1
	2,3,4,7,8‑pentachlorinated dibenzofuran	0.5
	1,2,3,7,8‑pentachlorinated dibenzofuran	0.05
	1,2,3,4,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzofuran	0.1
	2,3,4,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzofuran	0.01
	1,2,3,4,7,8,9‑heptachlorinated dibenzofuran	0.01
	Octachlorinated dibenzofuran	0.001

c. Sum the products calculated in accordance with subdivision 9 b of this subsection to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency.

10. Reference Method 26 shall be used to measure hydrogen chloride emissions. If the affected facility has selected the percentage reduction limits for hydrogen chloride under 9VAC5-40-6050, the percentage reduction in hydrogen chloride emissions (% R_HCl) is computed using the following formula:

where:

% R_HCl = percentage reduction of hydrogen chloride emissions achieved;

E_i = hydrogen chloride emission concentration measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = hydrogen chloride emission concentration measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

11. Reference Method 29 shall be used to measure lead, cadmium, and mercury emissions. If the affected facility has selected the percentage reduction limits for metals under 9VAC5-40-6080, 9VAC5-40-6090, or 9VAC5-40-6100, the percentage reduction in emissions (% R_metal) is computed using the following formula:

where:

% R_metal = percentage reduction of metal emission (lead, cadmium, or mercury) achieved;

E_i = metal emission concentration (lead, cadmium, or mercury) measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = metal emission concentration (lead, cadmium, or mercury) measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

D. Following the date on which the initial emissions test is completed or is required to be completed under this section, whichever date comes first, the owner of an affected facility shall:

1. Determine compliance with the opacity limit by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section.

2. Determine compliance with the particulate matter, carbon monoxide, and hydrogen chloride emission limits by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section. If all three emissions tests over a three-year period indicate compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for the subsequent two years. At a minimum, an emissions test for particulate matter, carbon monoxide, and hydrogen chloride shall be conducted every third year (no more than 36 months following the previous emissions test). If an emissions test conducted every third year indicates compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for an additional two years. If any emissions test indicates noncompliance with the respective emission limit, an emissions test for that pollutant shall be conducted annually until all annual emissions tests over a three-year period indicate compliance with the emission limit. The use of the bypass stack during an emissions test shall invalidate the emissions test.

3. Facilities using a continuous emission monitoring system to demonstrate compliance with any of the emission limits under 9VAC5-40-6020 through 9VAC5-40-6100 shall:

a. Determine compliance with the appropriate emission limit(s) using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours (not including startup, shutdown, or malfunction).

b. Operate all continuous emission monitoring systems in accordance with the applicable procedures under Appendices B and F of 40 CFR Part 60.

E. The owner of an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and wet scrubber shall:

1. Establish the appropriate maximum and minimum operating parameters, indicated in Table 4-44B of this article for each control system, as site specific operating parameters during the initial emissions test to determine compliance with the emission limits; and

Titles of Regulations: 9VAC5-10. General Definitions (Rev. J11) (amending 9VAC5-10-20).

9VAC5-20. General Provisions (Rev. J11) (repealing 9VAC5-20-202).

9VAC5-40. Existing Stationary Sources (Rev. J11) (repealing 9VAC5-40-6000 through 9VAC5-40-6230).

Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 12, 2012.

Effective Date: September 27, 2012.

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 (Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia) authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

The original purpose of the regulation was to establish emission standards that required the owners of HMIWIs to limit emissions of organics, metals, and acid gases to a specified level necessary to protect public health and welfare. The regulation was promulgated in order for the Commonwealth to meet the requirements of § 111(d) and 129 of the federal Clean Air Act.

Hospital/Medical/Infectious Waste Incinerators (HMIWI) emissions are a "designated" pollutant under § 111(d) of the Act. Designated pollutants are pollutants that are not 108(a) "criteria" pollutants or § 112(b)(1)(A) "hazardous" pollutants, but for which standards of performance for new sources have been established under § 111(b), new source performance standards (NSPSs). When the EPA establishes an NSPS, states are required to develop standards for existing facilities based on EPA emission guidelines. In conjunction of § 111(d), § 129 and its associated standards were promulgated because EPA determined that incinerator emissions cause or contribute significantly to air pollution, which may reasonably be expected to endanger public health and welfare. The intended effect of the standards and guidelines is to form a basis for state action to develop state regulations controlling HMIWI emissions to the level achievable by the best demonstrated system of continuous emission reduction, considering costs, nonair quality health and environmental impacts, and energy requirements. In order for §§ 111 and 129 to be effected, the specific guidelines are promulgated in the Code of Federal Regulations (CFR) at Subpart Ce of 40 CFR 63. State regulations must be at least as stringent as the guidelines.

The final rule (Subpart Ec of 40 CFR Part 60) was published by EPA in the Federal Register dated September 15, 1997 (62 FR 48348) and applies to existing HMIWIs built on or before June 20, 1996.

Purpose: The Commonwealth of Virginia HMIWI plan and related state rule were approved by EPA in the September 10, 2004, edition of the Federal Register (69 FR 54756) and codified in 40 CFR Part 62, Subpart VV. Since that time, all three designated incinerator facilities in the plan inventory subject to the state rule have been dismantled. On October 6, 2009, EPA promulgated revised HMIWI emission guidelines under 40 CFR Part 60, Subpart Ce, that triggered the need for revised state plan submittals. As a result, on September 13, 2010, the Department of Environmental Quality (DEQ) submitted a negative declaration regarding HMIWI sources within the state and requested EPA's approval of a SIP withdrawal request. In the December 17, 2010, edition of the Federal Register (75 FR 78917), EPA published Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants, Commonwealth of Virginia; Control of Emissions from Existing Hospital/Medical/Infectious Waste Incinerator (HMIWI) Units, Negative Declaration and Withdrawal of EPA Plan Approval. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective February 15, 2011. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 should also be repealed as the term is only used in Article 44 and in no other regulation of the board.

Rationale for Using Fast-Track Process: Virginia requested a finding of negative declaration for HMIWI on September 13, 2010, as all designated incinerator facilities in the plan inventory subject to Article 44 had been dismantled. On December 17, 2010, EPA approved the negative declaration and modified the Code of Federal Regulations accordingly. Subpart VV § 62.11625 was modified to reflect a negative declaration and became effective on February 15, 2011. Because there are no sources subject to the regulation and no HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation or for the use of the term "metropolitan statistical area" in 9VAC5-10-20 and 9VAC5-20-202. There is no stakeholder group that is likely to object to the repeal of the regulation. The use of the fast-track rulemaking process is, therefore, appropriate.

Substance: Article 44 is repealed in its entirety. 9VAC5-10 and 9VAC5-20 are revised to remove provisions concerning metropolitan statistical areas, which are used only in Article 44.

Issues: The primary advantage to the public is the removal of unusable regulatory requirements. There are no disadvantages to the public. The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Since the initial adoption of the regulation on Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities in the Commonwealth have been dismantled. In 2009, the U.S. Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. Thus, the State Air Pollution Control Board (Board) proposes to repeal the Commonwealth's HMIWI regulations (9VAC5-40-6000 et seq.). The Board also proposes to repeal the definition of the term "metropolitan statistical area" in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 since the term is only used in the HMIWI regulation and no other regulation of the board.

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

Estimated Economic Impact. Since there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, the proposed repeal of this regulation will not affect any individual, business or other entity beyond potentially reducing confusion amongst the public.

Businesses and Entities Affected. Since the facilities that were subject to this regulation have been dismantled, there are no stakeholders that will be affected by the repeal of this regulation.

Localities Particularly Affected. The proposed repeal of this regulation does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of this regulation will not affect small businesses.

Real Estate Development Costs. The proposed repeal of this regulation will not 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 Economic Impact Analysis: The State Air Pollution Control Board of has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Since the initial adoption of Article 44, Hospital/Medical/Infectious Waste Incinerators (HMIWI) (9VAC5-40-6000 et seq.), all three designated incinerator facilities have been dismantled. In 2009, the Environmental Protection Agency (EPA) promulgated revised HMIWI emission guidelines that triggered the need for revised regulations and new state plan submittals. With no facilities in operation in the Commonwealth, a negative declaration was submitted to EPA and approved in 2010. Because there are no sources in the state to control, and because there are no longer HMIWI components in the federal rule for Virginia, there is no longer a need for the corresponding Virginia regulation. The definition of the term metropolitan statistical area in 9VAC5-10-20 and the listing of such areas in 9VAC5-20-202 are also repealed as the term is only used in Article 44 and no other regulation of the board.

9VAC5-10-20. Terms defined.

"Actual emissions rate" means the actual rate of emissions of a pollutant from an emissions unit. In general actual emissions shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during the most recent two-year period or some other two-year period which is representative of normal source operation. If the board determines that no two-year period is representative of normal source operation, the board shall allow the use of an alternative period of time upon a determination by the board 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.

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

"Affected facility" means, with reference to a stationary source, any part, equipment, facility, installation, apparatus, process or operation to which an emission standard is applicable or any other facility so designated. The term "affected facility" includes any affected source as defined in 40 CFR 63.2.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety; to animal or plant life; or to property; or which unreasonably interfere with the enjoyment by the people of life or property.

"Air quality" means the specific measurement in the ambient air of a particular air pollutant at any given time.

"Air quality control region" means any area designated as such in 9VAC5-20-200.

"Alternative method" means any method of sampling and analyzing for an air pollutant which is not a reference or equivalent method, but which has been demonstrated to the satisfaction of the board, in specific cases, to produce results adequate for its determination of compliance.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Ambient air quality standard" means any primary or secondary standard designated as such in 9VAC5-30 (Ambient Air Quality Standards).

"Board" means the State Air Pollution Control Board or its designated representative.

"Class I area" means any prevention of significant deterioration area (i) in which virtually any deterioration of existing air quality is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class II area" means any prevention of significant deterioration area (i) in which any deterioration of existing air quality beyond that normally accompanying well-controlled growth is considered significant and (ii) designated as such in 9VAC5-20-205.

"Class III area" means any prevention of significant deterioration area (i) in which deterioration of existing air quality to the levels of the ambient air quality standards is permitted and (ii) designated as such in 9VAC5-20-205.

"Continuous monitoring system" means the total equipment used to sample and condition (if applicable), to analyze, and to provide a permanent continuous record of emissions or process parameters.

"Control program" means a plan formulated by the owner of a stationary source to establish pollution abatement goals, including a compliance schedule to achieve such goals. The plan may be submitted voluntarily, or upon request or by order of the board, to ensure compliance by the owner with standards, policies and regulations adopted by the board. The plan shall include system and equipment information and operating performance projections as required by the board for evaluating the probability of achievement. A control program shall contain the following increments of progress:

1. The date by which contracts for emission control system or process modifications are to be awarded, or the date by which orders are to be issued for the purchase of component parts to accomplish emission control or process modification.

2. The date by which the on-site construction or installation of emission control equipment or process change is to be initiated.

3. The date by which the on-site construction or installation of emission control equipment or process modification is to be completed.

4. The date by which final compliance is to be achieved.

"Criteria pollutant" means any pollutant for which an ambient air quality standard is established under 9VAC5-30 (Ambient Air Quality Standards).

"Day" means a 24-hour period beginning at midnight.

"Delayed compliance order" means any order of the board issued after an appropriate hearing to an owner which postpones the date by which a stationary source is required to comply with any requirement contained in the applicable implementation plan.

"Department" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"Director" or "executive director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Dispersion technique"

1. Means any technique which attempts to affect the concentration of a pollutant in the ambient air by:

a. Using that portion of a stack which exceeds good engineering practice stack height;

b. Varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or

c. Increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

2. The preceding sentence does not include:

a. The reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream;

b. The merging of exhaust gas streams where:

(1) The owner demonstrates that the facility was originally designed and constructed with such merged gas streams;

(2) After July 8, 1985, such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant. This exclusion from the definition of "dispersion techniques" shall apply only to the emissions limitation for the pollutant affected by such change in operation; or

(3) Before July 8, 1985, such merging was part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. Where there was an increase in the emissions limitation or, in the event that no emissions limitation was in existence prior to the merging, an increase in the quantity of pollutants actually emitted prior to the merging, the board shall presume that merging was significantly motivated by an intent to gain emissions credit for greater dispersion. Absent a demonstration by the owner that merging was not significantly motivated by such intent, the board shall deny credit for the effects of such merging in calculating the allowable emissions for the source;

c. Smoke management in agricultural or silvicultural prescribed burning programs;

d. Episodic restrictions on residential woodburning and open burning; or

e. Techniques under subdivision 1 c of this definition which increase final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed 5,000 tons per year.

"Emergency" means 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 limitation" means any requirement established by the board which limits the quantity, rate, or concentration of continuous emissions of air pollutants, including any requirements which limit the level of opacity, prescribe equipment, set fuel specifications, or prescribe operation or maintenance procedures to assure continuous emission reduction.

"Emission standard" means any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources) that prescribes an emissions limitation, or other requirements that control air pollution emissions.

"Emissions unit" means any part of a stationary source which emits or would have the potential to emit any air pollutant.

"Equivalent method" means any method of sampling and analyzing for an air pollutant which has been demonstrated to the satisfaction of the board to have a consistent and quantitative relationship to the reference method under specified conditions.

"EPA" means the U.S. Environmental Protection Agency or an authorized representative.

"Excess emissions" means emissions of air pollutant in excess of an emission standard.

"Excessive concentration" is defined for the purpose of determining good engineering practice (GEP) stack height under subdivision 3 of the GEP definition and means:

1. For sources seeking credit for stack height exceeding that established under subdivision 2 of the GEP definition, a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and which contributes to a total concentration due to emissions from all sources that is greater than an ambient air quality standard. For sources subject to the provisions of Article 8 (9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources), an excessive concentration alternatively means a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features which individually is at least 40% in excess of the maximum concentration experienced in the absence of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations under this provision shall be prescribed by the new source performance standard that is applicable to the source category unless the owner demonstrates that this emission rate is infeasible. Where such demonstrations are approved by the board, an alternative emission rate shall be established in consultation with the owner;

2. For sources seeking credit after October 11, 1983, for increases in existing stack heights up to the heights established under subdivision 2 of the GEP definition, either (i) a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects as provided in subdivision 1 of this definition, except that the emission rate specified by any applicable implementation plan (or, in the absence of such a limit, the actual emission rate) shall be used, or (ii) the actual presence of a local nuisance caused by the existing stack, as determined by the board; and

3. For sources seeking credit after January 12, 1979, for a stack height determined under subdivision 2 of the GEP definition where the board requires the use of a field study or fluid model to verify GEP stack height, for sources seeking stack height credit after November 9, 1984, based on the aerodynamic influence of cooling towers, and for sources seeking stack height credit after December 31, 1970, based on the aerodynamic influence of structures not adequately represented by the equations in subdivision 2 of the GEP definition, a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects that is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects.

"Existing source" means any stationary source other than a new source or modified source.

"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 Clean Air Act" means Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"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:

1. Emission standards, alternative emission standards, alternative emissions limitations, and equivalent emissions 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 implementation plan.

5. Limitations and conditions that are part of a section 111(d) or section 111(d)/129 plan.

6. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51.

7. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting 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.

8. Limitations and conditions 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.

9. Individual consent agreements issued pursuant to the legal authority of EPA.

"Good engineering practice" or "GEP," with reference to the height of the stack, means the greater of:

1. 65 meters, measured from the ground-level elevation at the base of the stack;

2. a. For stacks in existence on January 12, 1979, and for which the owner had obtained all applicable permits or approvals required under 9VAC5-80 (Permits for Stationary Sources),

Hg = 2.5H,

provided the owner produces evidence that this equation was actually relied on in establishing an emissions limitation;

b. For all other stacks,

Hg = H + 1.5L,

where:

Hg = good engineering practice stack height, measured from the ground-level elevation at the base of the stack,

H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack,

L = lesser dimension, height or projected width, of nearby structure(s) provided that the board may require the use of a field study or fluid model to verify GEP stack height for the source; or

3. The height demonstrated by a fluid model or a field study approved by the board, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features.

"Hazardous air pollutant" means an air pollutant to which no ambient air quality standard is applicable and which in the judgment of the administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved 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.

"Initial emission test" means the test required by any regulation, permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources), control program, compliance schedule or other enforceable mechanism for determining compliance with new or more stringent emission standards or permit limitations or other emissions limitations requiring the installation or modification of air pollution control equipment or implementation of a control method. Initial emission tests shall be conducted in accordance with 9VAC5-40-30.

"Initial performance test" means the test required by (i) 40 CFR Part 60 for determining compliance with standards of performance, or (ii) a permit issued pursuant to 9VAC5-80 (Permits for Stationary Sources) for determining initial compliance with permit limitations. Initial performance tests shall be conducted in accordance with 9VAC5-50-30 and 9VAC5-60-30.

"Isokinetic sampling" means sampling in which the linear velocity of the gas entering the sampling nozzle is equal to that of the undisturbed gas stream at the sample point.

"Locality" means a city, town, county or other public body created by or pursuant to state law.

"Maintenance area" means any geographic region of the United States previously designated as a nonattainment area and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan and designated as such in 9VAC5-20-203.

"Malfunction" means any sudden failure of air pollution control equipment, of process equipment, or of a process to operate in a normal or usual manner, which failure is not due to intentional misconduct or negligent conduct on the part of the owner or other person. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.

"Metropolitan statistical area" means any area designated as such in 9VAC5-20-202.

"Monitoring device" means the total equipment used to measure and record (if applicable) process parameters.

"Nearby" as used in the definition of good engineering practice (GEP) is defined for a specific structure or terrain feature and:

1. For purposes of applying the formulae provided in subdivision 2 of the GEP definition means that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 km (1/2 mile); and

2. For conducting demonstrations under subdivision 3 of the GEP definition means not greater than 0.8 km (1/2 mile), except that the portion of a terrain feature may be considered to be nearby which falls within a distance of up to 10 times the maximum height (Ht) of the feature, not to exceed two miles if such feature achieves a height (Ht) 0.8 km from the stack that is at least 40% of the GEP stack height determined by the formulae provided in subdivision 2 b of the GEP definition or 26 meters, whichever is greater, as measured from the ground-level elevation at the base of the stack. The height of the structure or terrain feature is measured from the ground-level elevation at the base of the stack.

"Nitrogen oxides" means all oxides of nitrogen except nitrous oxide, as measured by test methods set forth in 40 CFR Part 60.

"Nonattainment area" means any area which is shown by air quality monitoring data or, where such data are not available, which is calculated by air quality modeling (or other methods determined by the board to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant including, but not limited to, areas designated as such in 9VAC5-20-204.

"One hour" means any period of 60 consecutive minutes.

"One-hour period" means any period of 60 consecutive minutes commencing on the hour.

"Organic compound" means any chemical compound of carbon excluding carbon monoxide, carbon dioxide, carbonic disulfide, carbonic acid, metallic carbides, metallic carbonates and ammonium carbonate.

"Owner" means any person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals, who owns, leases, operates, controls or supervises a source.

"Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers.

"Particulate matter emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"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.

"PM₁₀ emissions" means finely divided solid or liquid material, with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by the applicable reference method, or an equivalent or alternative method.

"Performance test" means a test for determining emissions from new or modified sources.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Pollutant" means any substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interferes with the enjoyment by the people of life or property.

"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 its effect on emissions is state and federally enforceable.

"Prevention of significant deterioration area" means any area not designated as a nonattainment area in 9VAC5-20-204 for a particular pollutant and designated as such in 9VAC5-20-205.

"Proportional sampling" means sampling at a rate that produces a constant ratio of sampling rate to stack gas flow rate.

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007.02 of the Administrative Process Act, held to afford persons an opportunity to submit views and data relative to a matter on which a decision of the board is pending.

"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.

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.

"Regional director" means the regional director of an administrative region of the Department of Environmental Quality or a designated representative.

"Regulation of the board" means any regulation adopted by the State Air Pollution Control Board under any provision of the Code of Virginia.

"Regulations for the Control and Abatement of Air Pollution" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Reid vapor pressure" means the absolute vapor pressure of volatile crude oil and volatile nonviscous petroleum liquids except liquefied petroleum gases as determined by American Society for Testing and Materials publication, "Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)" (see 9VAC5-20-21).

"Run" means the net period of time during which an emission sample is collected. Unless otherwise specified, a run may be either intermittent or continuous within the limits of good engineering practice.

"Section 111(d) plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with § 111(d)(1) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with § 111 (d)(2) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Section 111(d)/129 plan" means the portion or portions of the plan, or the most recent revision thereof, which has been approved under 40 CFR 60.27(b) in accordance with §§ 111(d)(1) and 129(b)(2) of the federal Clean Air Act, or promulgated under 40 CFR 60.27(d) in accordance with §§ 111(d)(2) and 129(b)(3) of the federal Clean Air Act, and which implements the relevant requirements of the federal Clean Air Act.

"Shutdown" means the cessation of operation of an affected facility for any purpose.

"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.

"Stack" means any point in a source designed to emit solids, liquids or gases into the air, including a pipe or duct, but not including flares.

"Stack in existence" means that the owner had:

1. Begun, or caused to begin, a continuous program of physical on site construction of the stack; or

2. Entered into binding agreements or contractual obligations, which could not be canceled or modified without substantial loss to the owner, to undertake a program of construction of the stack to be completed in a reasonable time.

"Standard conditions" means a temperature of 20°C (68°F) and a pressure of 760 mm of Hg (29.92 inches of Hg).

"Standard of performance" means any provision of 9VAC5-50 (New and Modified Stationary Sources) which prescribes an emissions limitation or other requirements that control air pollution emissions.

"Startup" means the setting in operation of an affected facility for any purpose.

"State enforceable" means all limitations and conditions which are enforceable by the board or department, including, but not limited to, those requirements developed pursuant to 9VAC5-20-110; requirements within any applicable regulation, order, consent agreement or variance; and any permit requirements established pursuant to 9VAC5-80 (Permits for Stationary Sources).

"State Implementation Plan" means the plan, including the most recent revision thereof, which has been approved or promulgated by the administrator, U.S. Environmental Protection Agency, under § 110 of the federal Clean Air Act, and which implements the requirements of § 110.

"Stationary source" means any building, structure, facility or installation which emits or may emit any 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) 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 (see 9VAC5-20-21).

"These regulations" means 9VAC5-10 (General Definitions) through 9VAC5-80 (Permits for Stationary Sources).

"Total suspended particulate (TSP)" means particulate matter as measured by the reference method described in Appendix B of 40 CFR Part 50.

"True vapor pressure" means the equilibrium partial pressure exerted by a petroleum liquid as determined in accordance with methods described in American Petroleum Institute (API) publication, "Evaporative Loss from External Floating-Roof Tanks" (see 9VAC5-20-21). The API procedure may not be applicable to some high viscosity or high pour crudes. Available estimates of true vapor pressure may be used in special cases such as these.

"Urban area" means any area consisting of a core city with a population of 50,000 or more plus any surrounding localities with a population density of 80 persons per square mile and designated as such in 9VAC5-20-201.

"Vapor pressure," except where specific test methods are specified, means true vapor pressure, whether measured directly, or determined from Reid vapor pressure by use of the applicable nomograph in American Petroleum Institute publication, "Evaporative Loss from Floating-Roof Tanks" (see 9VAC5-20-21).

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Volatile organic compound" means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions.

1. This includes any such organic compounds which have been determined to have negligible photochemical reactivity other than the following:

a. Methane;

b. Ethane;

c. Methylene chloride (dichloromethane);

d. 1,1,1-trichloroethane (methyl chloroform);

e. 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113);

f. Trichlorofluoromethane (CFC-11);

g. Dichlorodifluoromethane (CFC-12);

h. Chlorodifluoromethane (H CFC-22);

i. Trifluoromethane (H FC-23);

j. 1,2-dichloro 1,1,2,2,-tetrafluoroethane (CFC-114);

k. Chloropentafluoroethane (CFC-115);

l. 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123);

m. 1,1,1,2-tetrafluoroethane (HFC-134a);

n. 1,1-dichloro 1-fluoroethane (HCFC-141b);

o. 1-chloro 1,1-difluoroethane (HCFC-142b);

p. 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124);

q. Pentafluoroethane (HFC-125);

r. 1,1,2,2-tetrafluoroethane (HFC-134);

s. 1,1,1-trifluoroethane (HFC-143a);

t. 1,1-difluoroethane (HFC-152a);

u. Parachlorobenzotrifluoride (PCBTF);

v. Cyclic, branched, or linear completely methylated siloxanes;

w. Acetone;

x. Perchloroethylene (tetrachloroethylene);

y. 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca);

z. 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb);

aa. 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee);

bb. Difluoromethane (HFC-32);

cc. Ethylfluoride (HFC-161);

dd. 1,1,1,3,3,3-hexafluoropropane (HFC-236fa);

ee. 1,1,2,2,3-pentafluoropropane (HFC-245ca);

ff. 1,1,2,3,3-pentafluoropropane (HFC-245ea);

gg. 1,1,1,2,3-pentafluoropropane (HFC-245eb);

hh. 1,1,1,3,3-pentafluoropropane (HFC-245fa);

ii. 1,1,1,2,3,3-hexafluoropropane (HFC-236ea);

jj. 1,1,1,3,3-pentafluorobutane (HFC-365mfc);

kk. Chlorofluoromethane (HCFC-31);

ll. 1 chloro-1-fluoroethane (HCFC-151a);

mm. 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a);

nn. 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C₄F₉OCH₃ or HFE-7100);

oo. 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂ OCH₃);

pp. 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C₄F₉ OC₂H₅ or HFE-7200);

qq. 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-hepta-fluoropropane ((CF₃)₂CFCF₂OC₂H₅);

rr. Methyl acetate; ss. 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C₃F₇OCH₃) (HFE-7000);

tt. 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500);

uu. 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea);

vv. methyl formate (HCOOCH₃);

ww. (1) 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300);

xx. propylene carbonate;

yy. dimethyl carbonate; and

zz. Perfluorocarbon compounds which fall into these classes:

(1) Cyclic, branched, or linear, completely fluorinated alkanes;

(2) Cyclic, branched, or linear, completely fluorinated ethers with no unsaturations;

(3) Cyclic, branched, or linear, completely fluorinated tertiary amines with no unsaturations; and

(4) Sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

2. For purposes of determining compliance with emissions standards, volatile organic compounds shall be measured by the appropriate reference method in accordance with the provisions of 9VAC5-40-30 or 9VAC5-50-30, as applicable. Where such a method also measures compounds with negligible photochemical reactivity, these negligibly reactive compounds may be excluded as a volatile organic compound if the amount of such compounds is accurately quantified, and such exclusion is approved by the board.

3. As a precondition to excluding these compounds as volatile organic compounds or at any time thereafter, the board may require an owner to provide monitoring or testing methods and results demonstrating, to the satisfaction of the board, the amount of negligibly reactive compounds in the emissions of the source.

4. Exclusion of the above compounds in this definition in effect exempts such compounds from the provisions of emission standards for volatile organic compounds. The compounds are exempted on the basis of being so inactive that they will not contribute significantly to the formation of ozone in the troposphere. However, this exemption does not extend to other properties of the exempted compounds which, at some future date, may require regulation and limitation of their use in accordance with requirements of the federal Clean Air Act.

5. The following compound is a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements that apply to VOCs and shall be uniquely identified in emission reports, but is not a VOC for purposes of VOC emission standards, VOC emissions limitations, or VOC content requirements: t-butyl acetate.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-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.

9VAC5-20-202. Metropolitan statistical areas. (Repealed.)

Metropolitan Statistical Areas are geographically defined as follows:

TITLE	GEOGRAPHICAL AREA
Bristol MSA	Bristol City Scott County Washington County
Charlottesville MSA	Charlottesville City Albemarle County Fluvanna County Greene County
Danville MSA	Danville City Pittsylvania County
Lynchburg MSA	Bedford City Lynchburg City Amherst County Bedford County Campbell County
Norfolk-Virginia Beach-Newport News MSA	Chesapeake City Norfolk City Portsmouth City Suffolk City Virginia Beach City Hampton City Newport News City Poquoson City Williamsburg City Gloucester County Isle of Wight County James City County Mathews County York County
Richmond-Petersburg MSA	Richmond City Colonial Heights City Hopewell City Petersburg City Charles City County Chesterfield County Goochland County Hanover County Henrico County New Kent County Powhatan County Prince George County Dinwiddie County
Roanoke MSA	Roanoke City Salem City Botetourt County Roanoke County
National Capital MSA	Alexandria City Fairfax City Falls Church City Fredericksburg City Manassas City Manassas Park City Arlington County Clarke County Culpeper County Fairfax County Fauquier County King George County Loudoun County Prince William County Spottsylvania County Stafford County Warren County

Article 44
Emission Standards for Hospital/Medical/Infectious Waste Incinerators (Rule 4-44)

9VAC5-40-6000. Applicability and designation of affected facility. (Repealed.)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each individual HMIWI for which construction was commenced on or before June 20, 1996.

B. The provisions of this article apply throughout the Commonwealth of Virginia.

C. Exempted from the provisions of this article are the following:

1. Combustors during periods when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned, provided the owner:

a. Notifies the board of an exemption claim; and

b. Keeps records on a calendar quarter basis of the periods of time when only pathological waste, low-level radioactive waste, or chemotherapeutic waste is burned.

2. Any co-fired combustor if the owner of the co-fired combustor:

a. Notifies the board of an exemption claim;

b. Provides an estimate of the relative weight of hospital waste, medical/infectious waste, and other fuels and or wastes to be combusted; and

c. Keeps records on a calendar quarter basis of the weight of hospital waste and medical/infectious waste combusted, and the weight of all other fuels and wastes combusted at the co-fired combustor.

3. Any combustor required to have a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.).

4. Any combustor which meets the applicability requirements under subpart Ea or Eb of 40 CFR Part 60 (standards for certain municipal waste combustors).

5. Any pyrolysis unit.

6. Cement kilns firing hospital waste and medical/infectious waste or both.

D. The provisions of this article do not apply to affected facilities subject to the standards in 9VAC5 Chapter 40, Article 54 (9VAC5-40-7950 et seq.).

E. Physical or operational changes made to an existing HMIWI unit solely for the purpose of complying with this article are not considered a modification and do not result in an existing HMIWI unit becoming subject to the provisions of subpart Ec of 40 CFR Part 60 (see 40 CFR 60.50c).

F. Beginning September 15, 2000, affected facilities subject to this article shall operate pursuant to a federal operating permit.

G. The provisions of 40 CFR Part 60 cited in this article are applicable only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50.

H. The requirement of subdivision C 3 of this section with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC20 Chapter 60.

9VAC5-40-6010. Definitions. (Repealed.)

A. For the purpose of 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 meanings given them in subsection C of this section.

B. As used in this article, all terms not defined here shall have the meanings given them in 9VAC5 Chapter 10, unless otherwise required by context.

C. Terms defined.

"Batch HMIWI" means an HMIWI that is designed such that neither waste charging nor ash removal can occur during combustion.

"Biologicals" means preparations made from living organisms and their products, including vaccines, cultures, etc., intended for use in diagnosing, immunizing, or treating humans or animals or in research pertaining thereto.

"Blood products" means any product derived from human blood, including but not limited to blood plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon, etc.

"Body fluids" means any liquid emanating or derived from humans and not limited to blood; dialysate; amniotic, cerebrospinal, synovial, pleural, peritoneal and pericardial fluids; and semen and vaginal secretions.

"Bypass stack" means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

"Chemotherapeutic waste" means waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells.

"Co-fired combustor" means a unit combusting hospital waste and medical/infectious waste or both with other fuels or wastes (e.g., coal, municipal solid waste) and subject to an enforceable requirement limiting the unit to combusting a fuel feed stream, 10% or less of the weight of which is comprised, in aggregate, of hospital waste and medical/infectious waste as measured on a calendar quarter basis. For purposes of this definition, pathological waste, chemotherapeutic waste, and low-level radioactive waste are considered "other" wastes when calculating the percentage of hospital waste and medical/infectious waste combusted.

"Combustor" means any type of stationary equipment in which solid, liquid or gaseous fuels and refuse are burned (including, but not limited to, furnaces, ovens, and kilns) for the primary purpose of destroying matter or reducing the volume, or both, of the waste by removing combustible matter.

"Commenced" means an owner has undertaken a continuous program of construction or modification or that an owner has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification.

"Compliance schedule" means a legally enforceable schedule specifying a date or dates by which a source must comply with specific emission limits contained in this article or with any increments of progress to achieve such compliance.

"Construction" means fabrication, erection, or installation of an affected facility.

"Continuous emission monitoring system" means a monitoring system for continuously measuring and recording the emissions of a pollutant from an affected facility.

"Continuous HMIWI" means an HMIWI that is designed to allow waste charging and ash removal during combustion.

"Dioxins/furans" means the combined emissions of tetra-through octa-chlorinated dibenzo-para-dioxins and dibenzofurans, as measured by Reference Method 23.

"Dry scrubber" means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the HMIWI exhaust stream forming a dry powder material.

"Fabric filter" means an add-on air pollution control system that removes particulate matter and nonvaporous metals emissions by passing flue gas through filter bags.

"Facilities manager" means the individual in charge of purchasing, maintaining, and operating the HMIWI or the owner's representative responsible for the management of the HMIWI. Alternative titles may include director of facilities or vice president of support services.

"Federal operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of Part II of 9VAC5 Chapter 80.

"High-air phase" means the stage of the batch operating cycle when the primary chamber reaches and maintains maximum operating temperatures.

"Hospital" means any facility which has an organized medical staff, maintains at least six inpatient beds, and where the primary function of the institution is to provide diagnostic and therapeutic patient services and continuous nursing care primarily to human inpatients who are not related and who stay on average in excess of 24 hours per admission. This definition does not include facilities maintained for the sole purpose of providing nursing or convalescent care to human patients who generally are not acutely ill but who require continuing medical supervision.

"Hospital/medical/infectious waste incinerator" or "HMIWI" or "HMIWI unit" means any device that combusts any amount of hospital waste and medical/infectious waste or both.

"Hospital/medical/infectious waste incinerator operator" or "HMIWI operator" means any person who operates, controls or supervises the day-to-day operation of an HMIWI.

"Hospital waste" means discards generated at a hospital, except unused items returned to the manufacturer. The definition of hospital waste does not include human corpses, remains, and anatomical parts that are intended for interment or cremation.

"Infectious agent" means any organism (such as a virus or bacteria) that is capable of being communicated by invasion and multiplication in body tissues and capable of causing disease or adverse health impacts in humans.

"Intermittent HMIWI" means an HMIWI that is designed to allow waste charging, but not ash removal, during combustion.

"Large HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day.

2. The following are not large HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is less than or equal to 4,000 pounds per day.

"Low-level radioactive waste" means waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 USC § 2014(e)(2)).

"Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. During periods of malfunction the HMIWI operator shall operate within established parameters as much as possible, and monitoring of all applicable operating parameters shall continue until all waste has been combusted or until the malfunction ceases, whichever comes first.

"Maximum charge rate" means:

1. For continuous and intermittent HMIWI, 110% of the lowest three-hour average charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

2. For batch HMIWI, 110% of the lowest daily charge rate measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Maximum design waste burning capacity" means:

1. For intermittent and continuous HMIWI,

C = P_V X 15,000/8,500

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

15,000 = primary chamber heat release rate factor, Btu/ft³/hr

8,500 = standard waste heating value, Btu/lb;

2. For batch HMIWI,

C = P_V X 4.5/8

where:

C = HMIWI capacity, lb/hr

P_V = primary chamber volume, ft³

4.5 = waste density, lb/ft³

8 = typical hours of operation of a batch HMIWI, hours.

"Maximum fabric filter inlet temperature" means 110% of the lowest three-hour average temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Maximum flue gas temperature" means 110% of the lowest three-hour average temperature at the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Medical/infectious waste" means any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals that is listed in subdivisions 1 through 9 of this definition. The definition of medical/infectious waste does not include hazardous waste identified or listed under the regulations in 40 CFR Part 261; household waste, as defined in 40 CFR 261.4(b)(1); ash from incineration of medical/infectious waste, once the incineration process has been completed; human corpses, remains, and anatomical parts that are intended for interment or cremation; and domestic sewage materials identified in 40 CFR 261.4(a)(1).

1. Cultures and stocks of infectious agents and associated biologicals, including: cultures from medical and pathological laboratories; cultures and stocks of infectious agents from research and industrial laboratories; wastes from the production of biologicals; discarded live and attenuated vaccines; and culture dishes and devices used to transfer, inoculate, and mix cultures.

2. Human pathological waste, including tissues, organs, and body parts and body fluids that are removed during surgery or autopsy, or other medical procedures, and specimens of body fluids and their containers.

3. Human blood and blood products, regardless of whether containerized, including:

a. Liquid human blood;

b. Products of blood;

c. Items containing unabsorbed or free-flowing blood;

d. Items saturated or dripping or both with human blood; or

e. Items that were saturated or dripping or both with human blood that are now caked with dried human blood; including serum, plasma, and other blood components, and their containers, which were used or intended for use in either patient care, testing and laboratory analysis or the development of pharmaceuticals. Intravenous bags are also included in this category.

4. Regardless of the presence of infectious agents, sharps that have been used in animal or human patient care or treatment or in medical, research, or industrial laboratories, including hypodermic needles, syringes (with or without the attached needle), pasteur pipettes, scalpel blades, blood vials, needles with attached tubing, and culture dishes. Also included are other types of broken or unbroken glassware that may have been in contact with infectious agents, such as used slides and cover slips.

5. Animal waste including contaminated animal carcasses, body parts, and bedding of animals that were known to have been exposed to infectious agents during research (including research in veterinary hospitals), production of biologicals or testing of pharmaceuticals.

6. Isolation wastes including biological waste and discarded materials contaminated with blood, excretions, exudates, or secretions from humans who are isolated to protect others from certain highly communicable diseases, or isolated animals known to be infected with highly communicable diseases.

7. Unused sharps including the following unused, discarded sharps: hypodermic needles, suture needles, syringes, and scalpel blades.

8. Any waste that is contaminated or mixed with any waste listed in subdivisions 1 through 7 of this definition.

9. Any residue or contaminated soil, waste, or other debris resulting from the cleaning of a spill of any waste listed in subdivisions 1 through 8 of this definition.

"Medium HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is more than 200 pounds per hour but less than or equal to 500 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour but less than or equal to 500 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day but less than or equal to 4,000 pounds per day.

2. The following are not medium HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour or more than 500 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day or less than or equal to 1,600 pounds per day.

"Minimum dioxin/furan sorbent flow rate" means 90% of the highest three-hour average dioxin/furan sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the dioxin/furan emission limit.

"Minimum mercury sorbent flow rate" means 90% of the highest three-hour average mercury sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the mercury emission limit.

"Minimum hydrogen chloride sorbent flow rate" means 90% of the highest three-hour average hydrogen chloride sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum horsepower or amperage" means 90% of the highest three-hour average horsepower or amperage to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the applicable emission limits.

"Minimum pressure drop across the wet scrubber" means 90% of the highest three-hour average pressure drop across the wet scrubber particulate matter control device (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter emission limit.

"Minimum scrubber liquor flow rate" means 90% of the highest three-hour average liquor flow rate at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with all applicable emission limits.

"Minimum scrubber liquor pH" means 90% of the highest three-hour average liquor pH at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the hydrogen chloride emission limit.

"Minimum secondary chamber temperature" means 90% of the highest three-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent emissions test demonstrating compliance with the particulate matter, carbon monoxide, or dioxin/furan emission limits.

"Modification" means any change to an HMIWI unit after March 16, 1998, such that:

1. The cumulative costs of the modifications, over the life of the unit, exceed 50% of the original cost of the construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) updated to current costs; or

2. The change involves a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under § 111 or § 129 of the federal Clean Air Act.

"Operating day" means a 24-hour period between 12:00 midnight and the following midnight during which any amount of hospital waste or medical/infectious waste is combusted at any time in the HMIWI.

"Operation" means the period during which waste is combusted in the incinerator excluding periods of startup or shutdown.

"Particulate matter" means the total particulate matter emitted from an HMIWI as measured by Reference Method 5 or Reference Method 29.

"Pathological waste" means waste material consisting of only human or animal remains, anatomical parts, or tissue, the bags and containers used to collect and transport the waste material, and animal bedding (if applicable).

"Primary chamber" means the chamber in an HMIWI that receives waste material, in which the waste is ignited, and from which ash is removed.

"Pyrolysis" means the endothermic gasification of hospital waste or medical/infectious waste or both using external energy.

"Secondary chamber" means a component of the HMIWI that receives combustion gases from the primary chamber and in which the combustion process is completed.

"Shutdown" means the period of time after all waste has been combusted in the primary chamber. For continuous HMIWI, shutdown shall commence no less than two hours after the last charge to the incinerator. For intermittent HMIWI, shutdown shall commence no less than four hours after the last charge to the incinerator. For batch HMIWI, shutdown shall commence no less than five hours after the high-air phase of combustion has been completed.

"Small HMIWI" means:

1. Except as provided in subdivision 2 of this definition:

a. An HMIWI whose maximum design waste burning capacity is less than or equal to 200 pounds per hour;

b. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour; or

c. A batch HMIWI whose maximum charge rate is less than or equal to 1,600 pounds per day.

2. The following are not small HMIWI:

a. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 pounds per hour; or

b. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day.

"Small, rural HMIWI" means any small HMIWI which is located more than 50 miles from the boundary of the nearest Metropolitan Statistical Area and which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste. The 2,000 pounds-per-week limitation does not apply during emissions tests.

"Startup" means the period of time between the activation of the system and the first charge to the unit. For batch HMIWI, startup means the period of time between activation of the system and ignition of the waste.

"Wet scrubber" means an add-on air pollution control device that utilizes an alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics), and to absorb and neutralize acid gases, or both.

9VAC5-40-6020. Standard for particulate matter. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any particulate emissions in excess of the following limits:

1. For small HMIWI: 0.05 grains per dry standard cubic foot (115 milligrams per dry standard cubic meter).

2. For medium HMIWI: 0.03 grains per dry standard cubic foot (69 milligrams per dry standard cubic meter).

3. For large HMIWI: 0.015 grains per dry standard cubic foot (34 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 0.086 grains per dry standard cubic foot (197 milligrams per dry standard cubic meter).

9VAC5-40-6030. Standard for carbon monoxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any carbon monoxide emissions in excess of the following limits:

1. For small HMIWI: 40 parts per million by volume.

2. For medium HMIWI: 40 parts per million by volume.

3. For large HMIWI: 40 parts per million by volume.

4. For small, rural HMIWI: 40 parts per million by volume.

9VAC5-40-6040. Standard for dioxins/furans. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any dioxin/furan emissions in excess of the following limits:

1. For small HMIWI: 55 grains per dry billion standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

2. For medium HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

3. For large HMIWI: 55 grains per billion dry standard cubic feet (125 nanograms per dry standard cubic meter) total dioxin/furan or 1.0 grains per billion standard cubic meter total TEQ (2.3 nanograms per dry standard cubic meter TEQ).

4. For small, rural HMIWI: 350 grains per billion dry standard cubic feet (800 nanograms per dry standard cubic meter) total dioxin/furan or 6.6 grains per billion standard cubic meter total TEQ (15 nanograms per dry standard cubic meter TEQ).

9VAC5-40-6050. Standard for hydrogen chloride. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any hydrogen chloride emissions in excess of the following limits:

1. For small HMIWI: 100 parts per million by volume or 93% reduction.

2. For medium HMIWI: 100 parts per million by volume or 93% reduction.

3. For large HMIWI: 100 parts per million by volume or 93% reduction.

4. For small, rural HMIWI: 3,100 parts per million by volume.

9VAC5-40-6060. Standard for sulfur dioxide. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any sulfur dioxide emissions in excess of the following limits:

1. For small HMIWI: 55 parts per million by volume.

2. For medium HMIWI: 55 parts per million by volume.

3. For large HMIWI: 55 parts per million by volume.

4. For small, rural HMIWI: 55 parts per million by volume.

9VAC5-40-6070. Standard for nitrogen oxides. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any nitrogen oxide emissions in excess of the following limits:

1. For small HMIWI: 250 parts per million by volume.

2. For medium HMIWI: 250 parts per million by volume.

3. For large HMIWI: 250 parts per million by volume.

4. For small, rural HMIWI: 250 parts per million by volume.

9VAC5-40-6080. Standard for lead. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any lead emissions in excess of the following limits:

1. For small HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

2. For medium HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

3. For large HMIWI: 0.52 grains per thousand dry standard cubic feet (1.2 milligrams per dry standard cubic meter) or 70% reduction.

4. For small, rural HMIWI: 4.4 grains per thousand dry standard cubic feet (10 milligrams per dry standard cubic meter).

9VAC5-40-6090. Standard for cadmium. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any cadmium emissions in excess of the following limits:

1. For small HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

2. For medium HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter) or 65% reduction.

3. For large HMIWI: 0.07 grains per thousand dry standard cubic feet (0.16 milligrams per dry standard cubic meter).

4. For small, rural HMIWI: 1.7 grains per thousand dry standard cubic feet (4 milligrams per dry standard cubic meter).

9VAC5-40-6100. Standard for mercury. (Repealed.)

No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any mercury emissions in excess of the following limits:

1. For small HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

2. For medium HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

3. For large HMIWI: 0.24 grains per thousand dry standard cubic feet (0.55 milligrams per dry standard cubic meter) or 85% reduction.

4. For small, rural HMIWI: 3.3 grains per thousand dry standard cubic feet (7.5 milligrams per dry standard cubic meter).

9VAC5-40-6110. Standard for visible emissions. (Repealed.)

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions) apply except that the provisions in subsection B of this section apply instead of 9VAC5-40-80.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any HMIWI any visible emissions which exhibit greater than 10% opacity, six-minute block average. Failure to meet the requirements of this section because of the presence of condensed water vapor shall not be a violation of this section.

9VAC5-40-6120. Standard for fugitive dust/emissions. (Repealed.)

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Fugitive Dust/Emissions, Rule 4-1) apply.

9VAC5-40-6130. Standard for odor. (Repealed.)

The provisions of Article 2 (9VAC5-40-130 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Odor, Rule 4-2) apply.

9VAC5-40-6140. Standard for toxic pollutants. (Repealed.)

The provisions of Article 4 (9VAC5-60-200 et seq.) of 9VAC5 Chapter 60 (Emission Standards for Toxic Pollutants, Rule 6-4) apply.

9VAC5-40-6150. HMIWI operator training and qualification. (Repealed.)

A. No owner of an affected facility shall allow the affected facility to operate at any time unless a fully trained and qualified HMIWI operator is accessible, either at the facility or available within one hour. The trained and qualified HMIWI operator may operate the HMIWI directly or be the direct supervisor of one or more HMIWI operators.

B. HMIWI operator training and qualification shall be obtained through a program approved by the board or by completing the requirements included in subsections C through G of this section.

C. Training shall be obtained by completing an HMIWI operator training course that includes, at a minimum, the following provisions:

1. Twenty-four hours of training on the following subjects:

a. Environmental concerns, including pathogen destruction and types of emissions;

b. Basic combustion principles, including products of combustion;

c. Operation of the type of incinerator to be used by the HMIWI operator, including proper startup, waste charging, and shutdown procedures;

d. Combustion controls and monitoring;

e. Operation of air pollution control equipment and factors affecting performance (if applicable);

f. Methods to monitor pollutants (continuous emission monitoring systems and monitoring of HMIWI and air pollution control device operating parameters) and equipment calibration procedures (where applicable);

g. Inspection and maintenance of the HMIWI, air pollution control devices, and continuous emission monitoring systems;

h. Actions to correct malfunctions or conditions that may lead to malfunction;

i. Bottom and fly ash characteristics and handling procedures;

j. Applicable federal, state, and local regulations;

k. Work safety procedures;

l. Pre-startup inspections; and

m. Recordkeeping requirements.

2. An examination designed and administered by the instructor.

3. Reference material distributed to the attendees covering the course topics.

D. Qualification shall be obtained by:

1. Completion of a training course that satisfies the criteria under subsection C of this section; and

2. Either six months experience as an HMIWI operator, six months experience as a direct supervisor of an HMIWI operator, or completion of at least two burn cycles under the observation of two qualified HMIWI operators.

E. Qualification is valid from the date on which the examination is passed or the completion of the required experience, whichever is later.

F. To maintain qualification, the trained and qualified HMIWI operator shall complete and pass an annual review or refresher course of at least four hours covering, at a minimum, the following:

1. Update of regulations;

2. Incinerator operation, including startup and shutdown procedures;

3. Inspection and maintenance;

4. Responses to malfunctions or conditions that may lead to malfunction; and

5. Discussion of operating problems encountered by attendees.

G. A lapsed qualification shall be renewed by one of the following methods:

1. For a lapse of less than three years, the HMIWI operator shall complete and pass a standard annual refresher course described in subsection F of this section.

2. For a lapse of three years or more, the HMIWI operator shall complete and pass a training course with the minimum criteria described in subsection C of this section.

H. The owner of an affected facility shall maintain documentation at the facility that address the following:

1. Summary of the applicable limits under this article;

2. Description of basic combustion theory applicable to an HMIWI;

3. Procedures for receiving, handling, and charging waste;

4. HMIWI startup, shutdown, and malfunction procedures;

5. Procedures for maintaining proper combustion air supply levels;

6. Procedures for operating the HMIWI and associated air pollution control systems within the limits established under this article;

7. Procedures for responding to periodic malfunction or conditions that may lead to malfunction;

8. Procedures for monitoring HMIWI emissions;

9. Reporting and recordkeeping procedures; and

10. Procedures for handling ash.

I. The owner of an affected facility shall establish a program for reviewing the information listed in subsection H of this section annually with each HMIWI operator.

1. The initial review of the information listed in subsection H of this section shall be conducted by January 1, 2001, or prior to assumption of responsibilities affecting HMIWI operation, whichever date is later.

2. Subsequent reviews of the information listed in subsection H of this section shall be conducted annually.

J. The information listed in subsection H of this section shall be kept in a readily accessible location for all HMIWI operators. This information, along with records of training shall be available for inspection by the board.

K. The initial training requirements of this section shall be performed by July 1, 2001.

L. The requirements of subsection B of this section with regard to obtaining operator training qualifications through a program approved by the board may be met by obtaining a license from the Board for Waste Management Facilities Operators. All training and licensing shall be in accordance with Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

M. No owner of an affected facility shall allow the facility to be operated at any time unless a person is on duty who is responsible for the proper operation of the facility and has a license from the Board for Waste Management Facility operators in the correct classification. No provision of this article shall relieve any owner from the responsibility to comply in all respects with the requirements of Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia, and with 18VAC155 Chapter 20.

9VAC5-40-6160. Waste management plans. (Repealed.)

A. The owner of an affected facility shall prepare a waste management plan. The waste management plan shall identify both the feasibility and the approach to separate certain components of solid waste from the health care waste stream in order to reduce the amount of toxic emissions from incinerated waste. A waste management plan may include, but is not limited to, elements such as paper, cardboard, plastics, glass, battery, or metal recycling; or purchasing recycled or recyclable products. A waste management plan may include different goals or approaches for different areas or departments of the facility and need not include new waste management goals for every waste stream. It should identify, where possible, reasonably available additional waste management measures, taking into account the effectiveness of waste management measures already in place, the costs of additional measures, the emission reductions expected to be achieved, and any other environmental or energy impacts they might have. The American Hospital Association publication entitled "An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities" (see 9VAC5-20-21) shall be considered in the development of the waste management plan.

B. The waste management plan shall be submitted to the board no later than 60 days after the initial emissions test as required under 9VAC5-40-6180.

9VAC5-40-6170. Inspections. (Repealed.)

A. The owner shall conduct an initial equipment inspection of each affected small, rural HMIWI by July 1, 2001. At a minimum, each inspection shall include the following:

1. Inspect all burners, pilot assemblies, and pilot sensing devices for proper operation; clean pilot flame sensor, as necessary;

2. Ensure proper adjustment of primary and secondary chamber combustion air, and adjust as necessary;

3. Inspect hinges and door latches, and lubricate as necessary;

4. Inspect dampers, fans, and blowers for proper operation;

5. Inspect HMIWI door and door gaskets for proper sealing;

6. Inspect motors for proper operation;

7. Inspect primary chamber refractory lining; clean and repair or replace lining as necessary;

8. Inspect incinerator shell for corrosion and hot spots;

9. Inspect secondary and tertiary chambers and stack, clean as necessary;

10. Inspect mechanical loader, including limit switches, for proper operation, if applicable;

11. Visually inspect waste bed (grates), and repair or seal, as appropriate;

12. For the burn cycle that follows the inspection, document that the incinerator is operating properly and make any necessary adjustments;

13. Inspect air pollution control device(s) for proper operation, if applicable;

14. Inspect waste heat boiler systems to ensure proper operation, if applicable;

15. Inspect bypass stack components;

16. Ensure proper calibration of thermocouples, sorbent feed systems and any other monitoring equipment; and

17. Generally observe that the equipment is maintained in good operating condition.

B. The owner shall conduct an equipment inspection of each affected small, rural HMIWI annually (no more than 12 months following the previous annual equipment inspection), as outlined in subsection A of this section.

C. Within 10 operating days following an equipment inspection all necessary repairs shall be completed unless the owner obtains written approval from the board establishing a date whereby all necessary repairs of the affected facility shall be completed.

9VAC5-40-6180. Compliance, emissions testing, and monitoring. (Repealed.)

A. The provisions governing compliance, emissions testing, and monitoring shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6120, 9VAC5-40-6130, and 9VAC5-40-6140, the provisions of 9VAC5-40-20 (Compliance), 9VAC5-40-30 (Emission testing) and 9VAC5-40-40 (Monitoring) apply.

2. With regard to the emission limits in 9VAC5-40-6020 through 9VAC5-40-6110, the following provisions apply:

a. 9VAC5-40-20 B, C, D, and E.

b. 40 CFR 60.11.

c. 9VAC5-40-30 D and G.

d. 40 CFR 60.8, with the exception of paragraph (a).

e. 9VAC5-40-40 A and F.

f. 40 CFR 60.13.

g. Subsections B through N of this section.

B. The emission limits under this article apply at all times except during periods of startup, shutdown, or malfunction, provided that no hospital waste or medical/infectious waste is charged to the affected facility during startup, shutdown, or malfunction.

C. Except as provided in subsection L of this section, the owner of an affected facility shall conduct an initial emissions test by December 27, 2001, as required under this section to determine compliance with the emission limits using the procedures and test methods listed in this subsection. The use of the bypass stack during an emissions test shall invalidate the emissions test.

1. All emissions tests shall consist of a minimum of three test runs conducted under representative operating conditions.

2. The minimum sample time shall be one hour per test run unless otherwise indicated.

3. Reference Method 1 shall be used to select the sampling location and number of traverse points.

4. Reference Method 3 or 3A shall be used for gas composition analysis, including measurement of oxygen concentration. Reference Method 3 or 3A shall be used simultaneously with each reference method.

5. The pollutant concentrations shall be adjusted to 7.0% oxygen using the following equation:

C_adj = C_meas (20.9-7)/(20.9-% O₂)

where:

C_adj = pollutant concentration adjusted to 7.0% oxygen;

C_meas = pollutant concentration measured on a dry basis;

(20.9-7) = 20.9% oxygen-7.0% oxygen (defined oxygen correction basis);

20.9 = oxygen concentration in air, percent; and

% O₂ = oxygen concentration measured on a dry basis, percent.

6. Reference Method 5 or 29 be used to measure the particulate matter emissions.

7. Reference Method 9 shall be used to measure stack opacity.

8. Reference Method 10 or 10B shall be used to measure the carbon monoxide emissions.

9. Reference Method 23 shall be used to measure total dioxin/furan emissions. The minimum sample time shall be four hours per test run. If the affected facility has selected the toxic equivalency limits for dioxin/furans, under 9VAC5-40-6040, the following procedures shall be used to determine compliance:

a. Measure the concentration of each dioxin/furan tetra-through octa-congener emitted using Reference Method 23.

b. For each dioxin/furan congener measured in accordance with subdivision 9 a of this subsection, multiply the congener concentration by its corresponding toxic equivalency factor specified in Table 4-44A of this article.

	TABLE 4-44A. TOXIC EQUIVALANCY FACTORS.
	Dioxon/furan congener	Toxic equivalency factor
	2,3,7,8‑tetrachlorinated dibenzo‑p‑dioxin	1
	1,2,3,7,8‑pentachlorinated dibenzo‑p‑dioxin	0.5
	1,2,3,4,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzo‑p‑dioxin	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzo‑p‑dioxin	0.01
	octachlorinated dibenzo‑p‑dioxin	0.001
	2,3,7,8‑tetrachlorinated dibenzofuran	0.1
	2,3,4,7,8‑pentachlorinated dibenzofuran	0.5
	1,2,3,7,8‑pentachlorinated dibenzofuran	0.05
	1,2,3,4,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,7,8,9‑hexachlorinated dibenzofuran	0.1
	2,3,4,6,7,8‑hexachlorinated dibenzofuran	0.1
	1,2,3,4,6,7,8‑heptachlorinated dibenzofuran	0.01
	1,2,3,4,7,8,9‑heptachlorinated dibenzofuran	0.01
	Octachlorinated dibenzofuran	0.001

c. Sum the products calculated in accordance with subdivision 9 b of this subsection to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency.

10. Reference Method 26 shall be used to measure hydrogen chloride emissions. If the affected facility has selected the percentage reduction limits for hydrogen chloride under 9VAC5-40-6050, the percentage reduction in hydrogen chloride emissions (% R_HCl) is computed using the following formula:

where:

% R_HCl = percentage reduction of hydrogen chloride emissions achieved;

E_i = hydrogen chloride emission concentration measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = hydrogen chloride emission concentration measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

11. Reference Method 29 shall be used to measure lead, cadmium, and mercury emissions. If the affected facility has selected the percentage reduction limits for metals under 9VAC5-40-6080, 9VAC5-40-6090, or 9VAC5-40-6100, the percentage reduction in emissions (% R_metal) is computed using the following formula:

where:

% R_metal = percentage reduction of metal emission (lead, cadmium, or mercury) achieved;

E_i = metal emission concentration (lead, cadmium, or mercury) measured at the control device inlet, corrected to 7.0% oxygen (dry basis); and

E_o = metal emission concentration (lead, cadmium, or mercury) measured at the control device outlet, corrected to 7.0% oxygen (dry basis).

D. Following the date on which the initial emissions test is completed or is required to be completed under this section, whichever date comes first, the owner of an affected facility shall:

1. Determine compliance with the opacity limit by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section.

2. Determine compliance with the particulate matter, carbon monoxide, and hydrogen chloride emission limits by conducting an annual emissions test (no more than 12 months following the previous emissions test) using the applicable procedures and test methods listed in subsection C of this section. If all three emissions tests over a three-year period indicate compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for the subsequent two years. At a minimum, an emissions test for particulate matter, carbon monoxide, and hydrogen chloride shall be conducted every third year (no more than 36 months following the previous emissions test). If an emissions test conducted every third year indicates compliance with the emission limit for a pollutant (particulate matter, carbon monoxide, or hydrogen chloride), the owner may forego an emissions test for that pollutant for an additional two years. If any emissions test indicates noncompliance with the respective emission limit, an emissions test for that pollutant shall be conducted annually until all annual emissions tests over a three-year period indicate compliance with the emission limit. The use of the bypass stack during an emissions test shall invalidate the emissions test.

3. Facilities using a continuous emission monitoring system to demonstrate compliance with any of the emission limits under 9VAC5-40-6020 through 9VAC5-40-6100 shall:

a. Determine compliance with the appropriate emission limit(s) using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours (not including startup, shutdown, or malfunction).

b. Operate all continuous emission monitoring systems in accordance with the applicable procedures under Appendices B and F of 40 CFR Part 60.

E. The owner of an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and wet scrubber shall:

1. Establish the appropriate maximum and minimum operating parameters, indicated in Table 4-44B of this article for each control system, as site specific operating parameters during the initial emissions test to determine compliance with the emission limits; and

Title of Regulation: 9VAC5-40. Existing Stationary Sources (Rev. A12) (repealing 9VAC5-40-5490 through 9VAC5-40-7360).

Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 12, 2012.

Effective Date: September 27, 2012.

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

Basis: Chapter 13 of Title 10.1 (§ 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. Written assurance from the Office of the Attorney General that the State Air Pollution Control Board possesses the statutory authority to promulgate the proposed regulation amendments is available upon request.

Identification of Specific Applicable Federal Requirements

Ozone is formed by complex series of reactions between nitrogen oxides (NOx) and volatile organic compounds (VOCs) under the influence of solar ultraviolet radiation (sunlight). Ozone shows a very strong diurnal (daily) and seasonal (April to October) cyclical character. Ozone injures vegetation, has adverse effects on materials (rubber and fabrics), and is a pulmonary irritant that affects respiratory mucous membranes, lung tissues, and respiratory functions.

The original ozone air quality standard that was the focus of air quality planning requirements after the promulgation of the 1990 Amendments to the Clean Air Act was a 1-hour standard. Since then, EPA has promulgated a new 8-hour ozone air quality standard and associated designation of nonattainment areas, which necessitates the initiation of new plans and regulatory actions.

40 CFR Part 81 specifies the designations of areas made under § 107(d) of the CAA and the associated nonattainment classification (if any) under § 181 of the CAA or 40 CFR 51.903(a), as applicable. On April 30, 2004 (69 FR 23858), EPA published its final decision as to the 8-hour nonattainment areas and associated classifications. The new designations are effective June 15, 2004. The Commonwealth of Virginia designations are in 40 CFR 81.347.

40 CFR Part 51, Subpart X, contains the provisions for the implementation of the 8-hour ozone NAAQS, along with the associated planning requirements. On April 30, 2004 (69 FR 23951), EPA published phase 1 of its final rule adding Subpart X to 40 CFR Part 51. Specifically, 40 CFR 51.903(a) sets forth the classification criteria and nonattainment dates for 8-hour ozone nonattainment areas once they are designated as such under 40 CFR Part 81. The remainder of the planning requirements (phase 2) were published on November 29, 2005 (70 FR 71612).

On March 27, 2008 (73 FR 16436), EPA published revised primary and secondary ozone NAAQS, revising both downward to 0.075 ppm. EPA has yet to publish implementation guidance for the change. States have until March 12, 2009, to recommend new nonattainment areas under the new standards.

The state regulations established VOC and NOx emissions control areas to provide the legal mechanism to define the geographic areas in which Virginia implements control measures to attain and maintain the air quality standards for ozone. The emissions control areas may or may not coincide with the nonattainment areas, depending on the necessity of the planning requirements.

General Federal Requirements

Sections 109 (a) and (b) of the Clean Air Act (CAA) require EPA to prescribe primary and secondary air quality standards to protect public health and welfare, respectively, for each air pollutant for which air quality criteria were issued before the enactment of the 1970 Clean Air Act. These standards are known as the National Ambient Air Quality Standards (NAAQS). Section 109 (c) requires the U.S. Environmental Protection Agency (EPA) to prescribe such standards simultaneously with the issuance of new air quality criteria for any additional air pollutant. The primary and secondary air quality criteria are authorized for promulgation under § 108.

Once the NAAQS are promulgated pursuant to § 109, § 107(d) sets out a process for designating those areas that are in compliance with the standards (attainment or unclassifiable) and those that are not (nonattainment). Governors provide the initial recommendations but EPA makes the final decision. Section 107(d) also sets forth the process for redesignations once the nonattainment areas are in compliance with the applicable NAAQS.

Section 110(a) of the CAA mandates that each state adopt and submit to EPA a plan which 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:

(1) 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;

(2) establish schedules for compliance;

(3) prohibit emissions which would contribute to nonattainment of the standards or interference with maintenance of the standards by any state; and

(4) require sources of air pollution to install, maintain, and replace monitoring equipment as necessary and to report periodically on emissions-related data.

40 CFR Part 50 specifies the NAAQS: sulfur dioxide, particulate matter, carbon monoxide, ozone (its precursors are nitrogen oxides and volatile organic compounds), nitrogen dioxide, and lead.

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, including those summarized below.

Subpart G (Control Strategy) specifies the description of control measures and schedules for implementation, the description of emissions reductions estimates sufficient to attain and maintain the standards, 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 K (Source Surveillance) specifies procedures for emissions reports and record-keeping, procedures for testing, inspection, enforcement, and complaints, transportation control measures, and procedures for continuous emissions monitoring.

Subpart L (Legal Authority) specifies the requirements for legal authority to implement plans. Section 51.230 under 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:

(1) adopt emission standards and limitations and any other measures necessary for the attainment and maintenance of the national ambient air quality standards;

(2) enforce applicable laws, regulations, and standards, and seek injunctive relief;

(3) abate pollutant emissions on an emergency basis to prevent substantial endangerment to the health of persons;

(4) 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;

(5) obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require record-keeping and to make inspections and conduct tests of air pollution sources;

(6) require owners or operators of stationary sources to install, maintain, and use emission monitoring devices and to make periodic reports to the state on the nature and amounts of emissions from such stationary sources; and

(7) make emissions data available to the public as reported and as correlated with any applicable emission standards or limitations.

Section 51.231 under Subpart L requires the identification of legal authority as follows:

(1) the provisions of law or regulation which the state determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the plan; and

(2) the plan must show that the legal authorities specified in this subpart are available to the state at the time of submission of the plan.

Subpart N (Compliance Schedules) specifies legally enforceable compliance schedules, final compliance schedule dates, and conditions for extensions beyond one year.

Part D describes how nonattainment areas are established, classified, and required to meet attainment.

Subpart 1 provides the overall framework of what nonattainment plans are to contain, while Subpart 2 provides more detail on what is required of areas designated nonattainment for ozone.

Section 171 defines "reasonable further progress," "nonattainment area," "lowest achievable emission rate," and "modification."

Section 172(a) authorizes EPA to classify nonattainment areas for the purpose of assigning attainment dates. Section 172(b) authorizes EPA to establish schedules for the submission of plans designed to achieve attainment by the specified dates. Section 172(c) specifies the provisions to be included in each attainment plan, as follows:

(1) the implementation of all reasonably available control measures as expeditiously as practicable and shall provide for the attainment of the national ambient air quality standards;

(2) the requirement of reasonable further progress;

(3) a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutants in the nonattainment area;

(4) an identification and quantification of allowable emissions from the construction and modification of new and modified major stationary sources in the nonattainment area;

(5) the requirement for permits for the construction and operations of new and modified major stationary sources in the nonattainment area;

(6) the inclusion of enforceable emission limitations and such other control measures (including economic incentives such as fees, marketable permits, and auctions of emission rights) as well as schedules for compliance;

(7) if applicable, the proposal of equivalent modeling, emission inventory, or planning procedures; and

(8) the inclusion of specific contingency measures to be undertaken if the nonattainment area fails to make reasonable further progress or to attain the national ambient air quality standards by the attainment date.

Section 172(d) requires that attainment plans be revised if EPA finds inadequacies. Section 172(e) authorizes the issuance of requirements for nonattainment areas in the event of a relaxation of any national ambient air quality standard. Such requirements shall provide for controls which are not less stringent than the controls applicable to these same areas before such relaxation.

Section 107(d)(3)(D) provides that a state may petition EPA to redesignate a nonattainment area as attainment and EPA may approve the redesignation subject to certain criteria being met. Section 107(d)(3)(E) stipulates one of these criteria, that EPA must fully approve a maintenance plan that meets the requirements of § 175A.

According to § 175A(a), the maintenance plan must be part of a SIP submission, and must provide for maintenance of the NAAQS for at least 10 years after the redesignation. The plan must contain any additional measures, as needed, to ensure maintenance. Section 175A(b) further requires that 8 years after redesignation, a maintenance plan for the next 10 years must then be submitted. As stated in § 175A(c), nonattainment requirements continue to apply until the SIP submittal is approved. Finally, § 175A(d) requires that the maintenance plan contain contingency provisions which will be implemented should the area fail to maintain the NAAQS as provided for in the original plan.

Under Part D, Subpart 2, § 181 sets forth the classifications and nonattainment dates for 1-hour ozone nonattainment areas once they are designated as such under § 107(d).

Section 182(a)(2)(A) requires that the existing regulatory program requiring reasonably available control technology (RACT) for stationary sources of volatile organic compounds (VOCs) in marginal nonattainment areas be corrected by May 15, 1991, to meet the minimum requirements in existence prior to the enactment of the 1990 amendments. RACT is 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. EPA has published control technology guidelines (CTGs) for various types of sources, thereby defining the minimum acceptable control measure or RACT for a particular source type.

Section 182(b) requires stationary sources in moderate nonattainment areas to comply with the requirements for sources in marginal nonattainment areas. The additional, more comprehensive control measures in § 182(b)(2)(A) require that each category of VOC sources employ RACT if the source is covered by a CTG document issued between enactment of the 1990 amendments and the attainment date for the nonattainment area. Section 182(b)(2)(B) requires that existing stationary sources emitting VOCs for which a CTG existed prior to adoption of the 1990 amendments also employ RACT.

Section 182(c) requires stationary sources in serious nonattainment areas to comply with the requirements for sources in both marginal and moderate nonattainment areas.

Section 182(d) requires stationary sources in severe nonattainment areas to comply with the requirements for sources in marginal, moderate and serious nonattainment areas.

Section 182(f) extends the requirements for the control of VOC emissions to emissions of NOx.

Section 184 establishes an Ozone Transport Region comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia. The Ozone Transport Commission is to assess the degree of interstate transport of the pollutant or precursors to the pollutant throughout the transport region, assess strategies for mitigating the interstate pollution, and to recommend control measures to ensure that the plans for the relevant States meet the requirements of the Act.

40 CFR Part 81 specifies the designations of areas made under § 107(d) of the CAA and the associated nonattainment classification (if any) under § 181 of the CAA or 40 CFR 51.903(a), as applicable.

EPA has issued detailed guidance that sets out its preliminary views on the implementation of the air quality planning requirements applicable to nonattainment areas. This guidance is titled the "General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990" (or "General Preamble"). See 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). The General Preamble has been supplemented with further guidance on Title I requirements. See 57 FR 55621 (Nov. 25, 1992) (guidance on NOx RACT requirements in ozone nonattainment areas). For this subject, the guidance provides little more than a summary and reiteration of the provisions of the Act.

On June 21, 2001, EPA issued formal guidelines for the "Ozone Flex Program." These guidelines set out eligibility requirements, what measures may be taken and how, and how localities, states and EPA are to develop and implement early reduction plans. On November 14, 2002, EPA issued a schedule for 8-hour ozone designations and its effect on early action compacts for potential 8-hour nonattainment areas.

40 CFR Part 51, Subpart X, contains the provisions for the implementation of the 8-hour ozone NAAQS, along with the associated planning requirements. Specifically, 40 CFR 51.903(a) sets forth the classification criteria and nonattainment dates for 8-hour ozone nonattainment areas once they are designated as such under 40 CFR Part 81.

State Requirements

These specific amendments are not required by state mandate. Rather, Virginia's Air Pollution Control Law gives the State Air Pollution Control Board the discretionary authority to promulgate regulations "abating, controlling and prohibiting air pollution throughout or in any part of the Commonwealth" (§ 10.1-1308 A of the Code of Virginia). The law defines such air pollution as "the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people or life or property" (§ 10.1-1300 of the Code of Virginia).

The Air Pollution Control Law (§ 10.1-1308 B of the Code of Virginia) specifically requires that any regulation that prohibits the selling of a consumer product not restrict the continued sale of the product by retailers of any existing inventories in stock at the time the regulation is promulgated.

Purpose: The purpose of Articles 39, 42, 49, and 50 of 9VAC5-40 was to require owners to limit emissions of VOC, a precursor of ambient air ozone, from portable fuel containers, certain consumer products, architectural and industrial maintenance coatings, and paving operations to the level necessary for (i) the protection of public health and welfare and (ii) the attainment and maintenance of the air quality standards in Virginia and in the northern Virginia nonattainment area.

On November 20, 2009, the board adopted revised consumer and commercial product regulations in a new chapter, 9VAC5-45, which became effective on March 17, 2010. These regulations were adopted to allow Virginia to meet its obligation to implement control measures in areas designated as nonattainment under the 8-hour ozone standard and to implement contingency measures within former nonattainment areas that have been redesignated as ozone maintenance areas. The purpose of adopting new regulations in a new chapter was to consolidate the consumer and commercial product regulations to make it easier for the regulated entities and the public to locate and use the applicable regulations.

The purpose of repealing the original four consumer product regulations in 9VAC5-40 is to remove the outdated, less restrictive requirements in Chapter 40 that duplicate and conflict with the corresponding updated articles that were consolidated into the new Chapter 45. Repealing the earlier regulations will complete the process of consolidation.

Rationale for Using Fast Track Process: There are more comprehensive and more restrictive consumer product requirements in 9VAC5-45 (that correspond to Articles 39, 42, 49, and 50 of 9VAC5-40) that are effective and have already been federally approved. Therefore, no objections to the repeal of the 9VAC5-40 consumer products requirements in Articles 39, 42, 49, and 50 are anticipated and the fast-track process is appropriate.

Substance: Article 39 (Emission Standards for Asphalt Paving Operations) of 9VAC5-40 is repealed in its entirety. It has been replaced by Article 7 of 9VAC5-45, which contains updated provisions for controlling emissions from asphalt paving operations.

Article 42 (Emission Standards for Portable Fuel Container Spillage) of 9VAC5-40 is repealed in its entirety. It has been replaced by Articles 1 and 2 of 9VAC5-45, which contain revised provisions for controlling emissions from portable fuel containers.

Article 49 (Emissions Standards for Architectural and Industrial Maintenance Coatings) of 9VAC5-40 is repealed in its entirety. It has been replaced by Article 5 of 9VAC5-45, which contains updated provisions for controlling emissions from architectural and industrial maintenance coatings.

Article 50 (Emissions Standards for Consumer Products) of 9VAC5-40 is repealed in its entirety. It has been replaced by Articles 3 and 4 of 9VAC5-45, which contain revised provisions for controlling emissions from consumer products.

The provisions of 9VAC5-45, Consumer and Commercial Products, are not affected by this repeal.

Issues: The primary advantage to the public is the removal of duplicative and conflicting regulatory regulations, which improves the public's ability to understand and comply with the most effective regulatory requirements. There are no disadvantages to the public.

The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Air Pollution Control Board (Board) proposes to repeal the consumer product portion (Article 39, Article 42, 49, and Article 50) of these regulations since those provisions have been duplicated and updated in the new chapter, 9VAC5-45 (Consumer and Commercial Products).

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

Estimated Economic Impact. The regulatory language in question has been superseded by provisions in the newly promulgated 9VAC5-45 (Consumer and Commercial Products). Thus the proposed repeal of Article 39, Article 42, 49, and Article 50 in 9VAC540 will have no impact beyond perhaps reducing potential confusion amongst the public.

Businesses and Entities Affected. Since the regulatory language proposed for repeal has been superseded by provisions in the newly promulgated 9VAC5-45, there are no businesses or entities which are affected by the proposed repeal. The subject matter of the regulations applies to: 1) companies and members of the public who provide asphalt paving services, 2) companies and members of the public that use or consume portable fuel containers, architectural coatings, or consumer products, 3) companies that manufacture or supply asphalt paving products, portable fuel containers, architectural coatings, or consumer products, and 4) businesses that apply asphalt pavement surfaces and coatings or architectural coatings. The Department of Environmental Quality estimates that there are as many as 3250 small businesses that might have an interest in the proposed repeal, but none would be affected in any significant way due to the promulgation of 9VAC5-45.

Localities Particularly Affected. The proposed repeal of the regulatory language does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of the regulatory language will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of the regulatory language will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of the regulatory language will not significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of the regulatory language will not significantly affect small businesses.

Real Estate Development Costs. The proposed repeal of the regulatory language will not 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 Economic Impact Analysis: The State Air Pollution Control Board has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The provisions of Articles 39, 42, 49, and 50 of 9VAC5-40 have been duplicated and updated in a new chapter, 9VAC5-45, Consumer and Commercial Products. This regulatory action repeals the older, outdated consumer product regulations in 9VAC5-40, Existing Stationary Sources.

Article 39
Emission Standards for Asphalt Paving Operations (Rule 4-39)

9VAC5-40-5490. Applicability and designation of affected facility. (Repealed.)

A. The affected facility to which the provisions of this article apply is each asphalt paving operation.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

9VAC5-40-5500. Definitions. (Repealed.)

A. For the purpose of these regulations 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 here shall have the meanings given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless otherwise required by context.

C. Terms defined.

"Asphalt" means a dark-brown to black cementitious material (solid, semisolid, or liquid in consistency) in which the predominating constituents are bitumens which occur in nature as such or which are obtained as residue in refining petroleum.

"Cutback asphalt" means asphalt cement which has been liquefied by blending with petroleum solvents (diluents). Upon exposure to atmospheric conditions the diluents evaporate, leaving the asphalt cement to perform its function.

"Emulsified asphalt" means an emulsion of asphalt cement and water which contains a small amount of an emulsifying agent; a heterogeneous system containing two normally immiscible phases (asphalt and water) in which the water forms the continuous phase of the emulsion, and minute globules of asphalt form the discontinuous phase.

"Penetrating prime coat" means an application of low-viscosity liquid asphalt to an absorbent surface. It is used to prepare an untreated base for an asphalt surface. The prime penetrates the base and fills the surface voids, hardens the top, and helps bind it to the overlying asphalt course. It also reduces the necessity of maintaining an untreated base course prior to placing the asphalt pavement.

9VAC5-40-5510. Standard for volatile organic compounds. (Repealed.)

A. No owner or other person shall cause or permit the manufacture, mixing, storage, use or application of liquefied asphalt for paving operations unless such asphalt is of the emulsified asphalt type.

B. Regardless of the provisions of subsection A of this section, the manufacture, mixing, storage, use or application of cutback asphalt is permitted under any of the following circumstances:

1. When stockpile storage greater than one month is necessary;

2. When use or application during the months of November through March is necessary;

3. When use or application as a penetrating prime coat or tack coat is necessary; or

4. When the user can demonstrate that there are no volatile organic compound emissions from the asphalt under conditions of normal use.

C. The provisions of subsection A of this section do not preclude the manufacture, mixing, storage, use or application of heated asphalt cement as a component in asphaltic concrete mixing or for priming in surface treatment.

D. Notwithstanding the provisions of subsection A of this section, the manufacture, mixing, storage, use or application of emulsified asphalt containing volatile organic compounds is permitted provided the annual average of volatile organic compound content for all emulsified asphalts used does not exceed 6% of volatile organic compounds by volume.

9VAC5-40-5520. Standard for visible emissions. (Repealed.)

The provisions of Article 1 (9VAC5-40-60 et seq.) of this chapter (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply.

9VAC5-40-5530. Standard for fugitive dust/emissions. (Repealed.)

The provisions of Article 1 (9VAC5-40-60 et seq.) of this chapter (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply.

9VAC5-40-5540. Standard for odor. (Repealed.)

The provisions of Article 2 (9VAC5-40-130 et seq.) of this chapter (Emission Standards for Odor, Rule 4-2) apply.

9VAC5-40-5550. Standard for toxic pollutants. (Repealed.)

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

9VAC5-40-5560. Compliance. (Repealed.)

The provisions of 9VAC5-40-20 (Compliance) apply.

9VAC5-40-5570. Test methods and procedures. (Repealed.)

The provisions of 9VAC5-40-30 (Emission Testing) apply.

9VAC5-40-5580. Monitoring. (Repealed.)

The provisions of 9VAC5-40-40 (Monitoring) apply.

9VAC5-40-5590. Notification, records and reporting. (Repealed.)

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

Article 42
Emission Standards for Portable Fuel Container Spillage (Rule 4-42)

9VAC5-40-5700. Applicability. (Repealed.)

A. Except as provided in subsections C through H of this section, the provisions of this article apply to any person who sells, supplies, offers for sale, or manufactures for sale portable fuel containers or spouts.

B. The provisions of this article apply only to sources and persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas.

D. This article does not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-40-5720, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas; and (ii) that the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

E. This article does not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

F. This article does not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

G. This article does not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons, provided such devices are designed either (i) to be used in officially sanctioned off-highway motorcycle competitions, (ii) to create a leak-proof seal against a stock target fuel tank, or (iii) to operate in conjunction with a receiver permanently installed on the target fuel tank.

H. This article does not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

I. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to business/governmental entities/individuals.

9VAC5-40-5710. Definitions. (Repealed.)

A. For the purpose of 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 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), unless otherwise required by context.

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or relabels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed or used primarily for receiving, transporting, storing, and dispensing fuel.

"Product category" means the applicable category that best describes the product with respect to its nominal capacity, material construction, fuel flow rate, and permeation rate, as applicable, as determined by the board.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Spill-proof spout" means any spout that complies with the standards specified in 9VAC5-40-5720 B.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that complies with the standards in 9VAC5-40-5720 A.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

9VAC5-40-5720. Standard for volatile organic compounds. (Repealed.)

A. No person shall sell, supply, offer for sale, or manufacture for sale any portable fuel container that at the time of sale or manufacture does not meet all of the following standards for spill-proof systems:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Has only one opening for both filling and pouring.

4. Provides a fuel flow rate and fill level of:

a. Not less than one-half gallon per minute for portable fuel containers with a nominal capacity of:

(1) Less than or equal to 1.5 gallons and fills to a level less than or equal to one inch below the top of the target fuel tank opening; or

(2) Greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to one inch below the top of the target fuel tank opening if the spill-proof system clearly displays the phrase "Low Flow Rate" in type of 34 point or greater on each spill-proof system or label affixed thereto and on the accompanying package, if any; or

b. Not less than one gallon per minute for portable fuel containers with a nominal capacity greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1.25 inches below the top of the target fuel tank opening; or

c. Not less than two gallons per minute for portable fuel containers with a nominal capacity greater than 2.5 gallons.

5. Does not exceed a permeation rate of 0.4 grams per gallon per day.

6. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

B. No person shall sell, supply, offer for sale, or manufacture for sale any spout that at the time of sale or manufacture does not meet all of the following standards for spill-proof spouts:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Provides a fuel flow rate and fill level of:

a. Not less than one-half gallon per minute for portable fuel containers with a nominal capacity of:

(1) Less than or equal to 1.5 gallons and fills to a level less than or equal to one inch below the top of the target fuel tank opening; or

(2) Greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to one inch below the top of the target fuel tank opening if the spill-proof spout clearly displays the phrase "Low Flow Rate" in type of 34 point or greater on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto; or

b. Not less than one gallon per minute for portable fuel containers with a nominal capacity greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1.25 inches below the top of the target fuel tank opening; or

c. Not less than two gallons per minute for portable fuel containers with a nominal capacity greater than 2.5 gallons.

4. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-40-5760. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-40-5760 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

E. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured before the applicable compliance date specified in 9VAC5-40-5750 A, may be sold, supplied, or offered for sale after the applicable compliance date, if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.

9VAC5-40-5730. Administrative requirements. (Repealed.)

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-40-5720 A shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date; and

3. A representative code identifying the portable fuel container as subject to and complying with 9VAC5-40-5720 A.

B. Each manufacturer of a spout subject to and complying with 9VAC5-40-5720 B shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date; and

3. A representative code identifying the spout as subject to and complying with 9VAC5-40-5720 B.

C. Each manufacturer subject to subsection A or B of this section shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding.

D. Each manufacturer subject to subsection A or B of this section shall clearly display a fuel flow rate on each spill-proof system or spill-proof spout, or label affixed thereto, and on any accompanying package.

E. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-40-5720 A on the accompanying package, or for spill-proof spouts sold without packaging on either the spill-proof spout or a label affixed thereto.

F. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-40-5720 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

G. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-40-5720 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

9VAC5-40-5740. Compliance. (Repealed.)

The provisions of subsections B, D, F, and J of 9VAC5-40-20 (Compliance) apply. The other provisions of 9VAC5-40-20 do not apply.

9VAC5-40-5750. Compliance schedules. (Repealed.)

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

B. Any person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

9VAC5-40-5760. Test methods and procedures. (Repealed.)

A. The provisions of subsection G of 9VAC5-40-30 (Emission testing) apply. The other provisions of 9VAC5-40-30 do not apply.

B. Testing to determine compliance with 9VAC5-40-5720 B of this article shall be performed by using the following test procedures:

1. California Air Resources Board (CARB) Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts.

2. CARB Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts.

3. CARB Determination of Fuel Flow Rate for Spill-Proof Systems and Spill-Proof Spouts.

C. Testing to determine compliance with 9VAC5-40-5720 A of this article shall be performed by using all test procedures in subsection B of this section and the following test procedure: CARB Determination of Permeation Rate for Spill-Proof Systems. These test methods are incorporated by reference in 9VAC5-20-21.

9VAC5-40-5770. Notification, records and reporting. (Repealed.)

The provisions of subsections D, E, F, and H of 9VAC5-40-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-40-50 do not apply.

Article 49
Emission Standards for Architectural and Industrial Maintenance Coatings (Rule 4-49)

9VAC5-40-7120. Applicability. (Repealed.)

A. Except as provided in subsection C of this section, the provisions of this article apply to any person who supplies, sells, offers for sale, or manufactures any architectural coating for use, as well as any person who applies or solicits the application of any architectural coating.

B. The provisions of this article apply only to persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to:

1. Any architectural coating that is sold or manufactured for use exclusively outside of the Northern Virginia and Fredericksburg Volatile Organic Compound Emission Control Areas or for shipment to other manufacturers for reformulation or repackaging.

2. Any aerosol coating product.

3. Any architectural coating that is sold in a container with a volume of one liter (1.057 quart) or less.

D. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

9VAC5-40-7130. Definitions. (Repealed.)

A. For the purpose of 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 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), unless otherwise required by context.

C. Terms defined.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Aerosol coating product" means a pressurized coating product containing pigments or resins that dispenses product ingredients by means of a propellant, and is packaged in a disposable can for hand-held application, or for use in specialized equipment for ground traffic/marking applications.

"Antenna coating" means a coating labeled and formulated exclusively for application to equipment and associated structural appurtenances that are used to receive or transmit electromagnetic signals.

"Antifouling coating" means a coating labeled and formulated for application to submerged stationary structures and their appurtenances to prevent or reduce the attachment of marine or freshwater biological organisms. To qualify as an antifouling coating, the coating shall be registered with both the U.S. EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 USC § 136 et seq.) and with the Pesticide Control Board under the provisions of the Virginia Pesticide Control Act (Chapter 14.1 (§ 3.1-249.27 et seq.) of Title 3.1 of the Code of Virginia).

"Appurtenance" means any accessory to a stationary structure coated at the site of installation, whether installed or detached, including but not limited to bathroom and kitchen fixtures; cabinets; concrete forms; doors; elevators; fences; hand railings; heating equipment, air conditioning equipment, and other fixed mechanical equipment or stationary tools; lampposts; partitions pipes and piping systems; rain gutters and downspouts; stairways; fixed ladders; catwalks and fire escapes; and window screens.

"Architectural coating" means a coating to be applied to stationary structures or the appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. Coatings applied in shop applications or to nonstationary structures such as airplanes, ships, boats, railcars, and automobiles, and adhesives are not considered architectural coatings for the purposes of this article.

"ASTM" means the American Society for Testing and Materials.

"Bitumens" means black or brown materials including, but not limited to, asphalt, tar, pitch, and asphaltite that are soluble in carbon disulfide, consist mainly of hydrocarbons, and are obtained from natural deposits of asphalt or as residues from the distillation of crude petroleum or coal.

"Bituminous roof coating" means a coating that incorporates bitumens that is labeled and formulated exclusively for roofing.

"Bituminous roof primer" means a primer that consists of a coating or mastic formulated and recommended for roofing, pavement sealing, or waterproofing that incorporates bitumens.

"Bond breaker" means a coating labeled and formulated for application between layers of concrete to prevent a freshly poured top layer of concrete from bonding to the layer over which it is poured.

"Calcimine recoater" means a flat solvent borne coating formulated and recommended specifically for recoating calcimine-painted ceilings and other calcimine-painted substrates.

"Clear brushing lacquers" means clear wood finishes, excluding clear lacquer sanding sealers, formulated with nitrocellulose or synthetic resins to dry by solvent evaporation without chemical reaction and to provide a solid, protective film, that are intended exclusively for application by brush and that are labeled as specified in subdivision 5 of 9VAC5-40-7150.

"Clear wood coatings" means clear and semi-transparent coatings, including lacquers and varnishes, applied to wood substrates to provide a transparent or translucent solid film.

"Coating" means a material applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealers, and stains.

"Colorant" means a concentrated pigment dispersion in water, solvent, or binder that is added to an architectural coating after packaging in sale units to produce the desired color.

"Concrete curing compound" means a coating labeled and formulated for application to freshly poured concrete to retard the evaporation of water.

"Concrete surface retarder" means a mixture of retarding ingredients such as extender pigments, primary pigments, resin, and solvent that interact chemically with the cement to prevent hardening on the surface where the retarder is applied, allowing the retarded mix of cement and sand at the surface to be washed away to create an exposed aggregate finish.

"Conversion varnish" means a clear acid curing coating with an alkyd or other resin blended with amino resins and supplied as a single component or two-component product. Conversion varnishes produce a hard, durable, clear finish designed for professional application to wood flooring. The film formation is the result of an acid-catalyzed condensation reaction, effecting a transetherification at the reactive ethers of the amino resins.

"Dry fog coating" means a coating labeled and formulated only for spray application such that overspray droplets dry before subsequent contact with incidental surfaces in the vicinity of the surface coating activity.

"Exempt compound" means a compound identified as exempt under the definition of Volatile Organic Compound (VOC) in 9VAC5-10-20. An exempt compound's content of a coating shall be determined by Reference Method 24 or South Coast Air Quality Management District (SCAQMD) Method for Determination of Exempt Compounds (see 9VAC5-20-21).

"Extreme durability coating" means an air-dried coating, including fluoropolymer-based coating, that is formulated and recommended for application to exterior metal surfaces and touch up, repair and overcoating of precoated metal surfaces, and that meets the weathering requirements of American Architectural Manufacturers Association Voluntary Specification—Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels (see 9VAC5-20-21).

"Faux finishing coating" means a coating labeled and formulated as a stain or a glaze to create artistic effects including, but not limited to, dirt, old age, smoke damage, and simulated marble and wood grain.

"Fire-resistive coating" means an opaque coating labeled and formulated to protect the structural integrity by increasing the fire endurance of interior or exterior steel and other structural materials, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing assemblies of structural materials into compliance with federal, state, and local building code requirements. The fire-resistive coating shall be tested in accordance with American Society for Testing and Materials (ASTM) Standard Test Method for Fire Tests of Building Construction Materials (see 9VAC5-20-21).

"Fire-retardant coating" means a coating labeled and formulated to retard ignition and flame spread, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing building and construction materials into compliance with federal, state, and local building code requirements. The fire-retardant coating shall be tested in accordance with ASTM Standard Test Method for Surface Burning Characteristics of Building Construction Materials (see 9VAC5-20-21).

"Flat coating" means a coating that is not defined under any other definition in this article and that registers gloss less than 15 on an 85-degree meter or less than five on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Floor coating" means an opaque coating that is labeled and formulated for application to flooring, including, but not limited to, decks, porches, steps, and other horizontal surfaces, that may be subjected to foot traffic.

"Flow coating" means a coating labeled and formulated exclusively for use by electric power companies or their subcontractors to maintain the protective coating systems present on utility transformer units.

"Form-release compound" means a coating labeled and formulated for application to a concrete form to prevent the freshly poured concrete from bonding to the form. The form may consist of wood, metal, or some material other than concrete.

"Graphic arts coating or sign paint" means a coating labeled and formulated for hand-application by artists using brush or roller techniques to indoor and outdoor signs (excluding structural components) and murals including letter enamels, poster colors, copy blockers, and bulletin enamels.

"High-temperature coating" means a high-performance coating labeled and formulated for application to substrates exposed continuously or intermittently to temperatures above 204 degrees Centigrade (400 degrees Fahrenheit).

"Impacted immersion coating" means a high performance maintenance coating formulated and recommended for application to steel structures subject to immersion in turbulent, debris-laden water. These coatings are specifically resistant to high-energy impact damage caused by floating ice or debris.

"Industrial maintenance coating" means a high-performance architectural coating, including primers, sealers, undercoaters, intermediate coats, and topcoats, formulated for application to substrates exposed to one or more of the following extreme environmental conditions, and labeled as specified in subdivision 4 of 9VAC5-40-7150:

1. Immersion in water, wastewater, or chemical solutions (aqueous and nonaqueous solutions), or chronic exposures of interior surfaces to moisture condensation;

2. Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions;

3. Repeated exposure to temperatures above 121 degrees Centigrade (250 degrees Fahrenheit);

4. Repeated (frequent) heavy abrasion, including mechanical wear and repeated (frequent) scrubbing with industrial solvents, cleansers, or scouring agents; or

5. Exterior exposure of metal structures and structural components.

"Lacquer" means a clear or opaque wood coating, including clear lacquer sanding sealers, formulated with cellulosic or synthetic resins to dry by evaporation without chemical reaction and to provide a solid, protective film.

"Low-solids coating" means a coating containing 0.12 kilogram or less of solids per liter (one pound or less of solids per gallon) of coating material.

"Magnesite cement coating" means a coating labeled and formulated for application to magnesite cement decking to protect the magnesite cement substrate from erosion by water.

"Mastic texture coating" means a coating labeled and formulated to cover holes and minor cracks and to conceal surface irregularities, and is applied in a single coat of at least 10 mils (0.010 inch) dry film thickness.

"Metallic pigmented coating" means a coating containing at least 48 grams of elemental metallic pigment, mica particles or any combination of metallic pigment or mica particles per liter of coating as applied (0.4 pounds per gallon), when tested in accordance with South Coast Air Quality Air Management District (SCAQMD) Method for Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction (see 9VAC5-20-21).

"Multi-color coating" means a coating that is packaged in a single container and that exhibits more than one color when applied in a single coat.

"Nonflat coating" means a coating that is not defined under any other definition in this article and that registers a gloss of 15 or greater on an 85-degree meter and five or greater on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonflat high-gloss coating" means a nonflat coating that registers a gloss of 70 or above on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonindustrial use" means any use of architectural coatings except in the construction or maintenance of any of the following: facilities used in the manufacturing of goods and commodities; transportation infrastructure, including highways, bridges, airports and railroads; facilities used in mining activities, including petroleum extraction; and utilities infrastructure, including power generation and distribution, and water treatment and distribution systems.

"Nuclear coating" means a protective coating formulated and recommended to seal porous surfaces such as steel (or concrete) that otherwise would be subject to intrusions by radioactive materials. These coatings must be resistant to long-term (service life) cumulative radiation exposure as determined by ASTM Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants (see 9VAC5-20-21), relatively easy to decontaminate, and resistant to various chemicals to which the coatings are likely to be exposed as determined by ASTM Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants (see 9VAC5-20-21).

"Post-consumer coating" means a finished coating that would have been disposed of in a landfill, having completed its usefulness to a consumer, and does not include manufacturing wastes.

"Pretreatment wash primer" means a primer that contains a minimum of 0.5 acid, by weight, when tested in accordance with ASTM Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer and Related Products (see 9VAC5-20-21), that is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and to promote adhesion of subsequent topcoats.

"Primer" means a coating labeled and formulated for application to a substrate to provide a firm bind between the substrate and subsequent coats.

"Quick-dry enamel" means a nonflat coating that is labeled as specified in subdivision 8 of 9VAC5-40-7150 and that is formulated to have the following characteristics:

1. Is capable of being applied directly from the container under normal conditions with ambient temperatures between 16 and 27 degrees Centigrade (60 and 80 degrees Fahrenheit);

2. When tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21), sets to touch in two hours or less, is tack-free in four hours or less, and dries hard in eight hours or less by the mechanical test method; and

3. Has a dried film gloss of 70 or above on a 60-degree meter.

"Quick-dry primer sealer and undercoater" means a primer, sealer, or undercoater that is dry to the touch in 30 minutes and can be recoated in two hours when tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21).

"Recycled coating" means an architectural coating formulated such that not less than 50% of the total weight consists of secondary and post-consumer coating, with not less than 10% of the total weight consisting of post-consumer coating.

"Residence" means areas where people reside or lodge, including, but not limited to, single and multiple family dwellings, condominiums, mobile homes, apartment complexes, motels, and hotels.

"Roof coating" means a nonbituminous coating labeled and formulated exclusively for application to roofs for the primary purpose of preventing penetration of the substrate by water or reflecting heat and ultraviolet radiation. Metallic pigmented roof coatings, which qualify as metallic pigmented coatings, shall not be considered in this category, but shall be considered to be in the metallic pigmented coatings category.

"Rust-preventive coating" means a coating formulated exclusively for nonindustrial use to prevent the corrosion of metal surfaces and labeled as specified in subdivision 6 of 9VAC5-40-7150.

"Sanding sealer" means a clear or semi-transparent wood coating labeled and formulated for application to bare wood to seal the wood and to provide a coat that can be abraded to create a smooth surface for subsequent applications of coatings. A sanding sealer that also meets the definition of a lacquer is not included in this category, but it is included in the lacquer category.

"Sealer" means a coating labeled and formulated for application to a substrate for one or more of the following purposes: to prevent subsequent coatings from being absorbed by the substrate, or to prevent harm to subsequent coatings by materials in the substrate.

"Secondary coating (rework)" means a fragment of a finished coating or a finished coating from a manufacturing process that has converted resources into a commodity of real economic value, but does not include excess virgin resources of the manufacturing process.

"Shellac" means a clear or opaque coating formulated solely with the resinous secretions of the lac beetle (Laciffer lacca), thinned with alcohol, and formulated to dry by evaporation without a chemical reaction.

"Shop application" means the application of a coating to a product or a component of a product in or on the premises of a factory or a shop as part of a manufacturing, production, or repairing process (e.g., original equipment manufacturing coatings).

"Solicit" means to require for use or to specify, by written or oral contract.

"Specialty primer, sealer, and undercoater" means a coating labeled as specified in subdivision 7 of 9VAC5-40-7150 and that is formulated for application to a substrate to seal fire, smoke or water damage; to condition excessively chalky surfaces; or to block stains. An excessively chalky surface is one that is defined as having a chalk rating of four or less as determined by ASTM Standard Test Methods for Evaluating the Degree of Chalking of Exterior Paint Films (see 9VAC5-20-21).

"Stain" means a clear, semi-transparent, or opaque coating labeled and formulated to change the color of a surface but not conceal the grain pattern or texture.

"Swimming pool coating" means a coating labeled and formulated to coat the interior of swimming pools and to resist swimming pool chemicals.

"Swimming pool repair and maintenance coating" means a rubber-based coating labeled and formulated to be used over existing rubber-based coatings for the repair and maintenance of swimming pools.

"Temperature-indicator safety coating" means a coating labeled and formulated as a color-changing indicator coating for the purpose of monitoring the temperature and safety of the substrate, underlying piping, or underlying equipment, and for application to substrates exposed continuously or intermittently to temperatures above 204 degrees Centigrade (400 degrees Fahrenheit).

"Thermoplastic rubber coating and mastic" means a coating or mastic formulated and recommended for application to roofing or other structural surfaces and that incorporates no less than 40% by weight of thermoplastic rubbers in the total resin solids and may also contain other ingredients including, but not limited to, fillers, pigments, and modifying resins.

"Tint base" means an architectural coating to which colorant is added after packaging in sale units to produce a desired color.

"Traffic marking coating" means a coating labeled and formulated for marking and striping streets, highways, or other traffic surfaces including, but not limited to, curbs, berets, driveways, parking lots, sidewalks, and airport runways.

"Undercoater" means a coating labeled and formulated to provide a smooth surface for subsequent coatings.

"Varnish" means a clear or semitransparent wood coating, excluding lacquers and shellacs, formulated to dry by chemical reaction on exposure to air. Varnishes may contain small amounts of pigment to color a surface, or to control the fetal sheen or gloss of the finish.

"VOC content" means the weight of VOC per volume of coating, calculated according to the procedures specified in 9VAC5-40-7220 B.

"Waterproofing sealer" means a coating labeled and formulated for application to a porous substrate for the primary purpose of preventing the penetration of water.

"Waterproofing concrete/masonry sealer" means a clear or pigmented film-forming coating that is labeled and formulated for sealing concrete and masonry to provide resistance against water, alkalis, acids, ultraviolet light, and staining.

"Wood preservative" means a coating labeled and formulated to protect exposed wood from decay or insect attack that is registered with both the U.S. EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 et seq.) and with the Pesticide Control Board under the provisions of the Virginia Pesticide Control Act (Chapter 14. 1 (§ 3.1-249.27 et seq.) of the Code of Virginia).

9VAC5-40-7140. Standard for volatile organic compounds. (Repealed.)

A. Except as provided in this section, no person shall (i) manufacture, blend, or repackage for sale, (ii) supply, sell, or offer for sale, or (iii) solicit for application or apply any architectural coating with a VOC content in excess of the corresponding limit specified in Table 4-49A.

B. If anywhere on the container of any architectural coating, or any label or sticker affixed to the container, or in any sales, advertising, or technical literature supplied by a manufacturer or any person acting on behalf of a manufacturer, any representation is made that indicates that the coating meets the definition of or is recommended for use for more than one of the coating categories listed in Table 4-49A, then the most restrictive VOC content limit shall apply. This provision does not apply to the following coating categories:

Lacquer coatings (including lacquer sanding sealers);

Metallic pigmented coatings;

Shellacs;

Fire-retardant coatings;

Pretreatment wash primers;

Industrial maintenance coatings;

Low-solids coatings;

Wood preservatives;

High-temperature coatings;

Temperature-indicator safety coatings;

Antenna coatings;

Antifouling coatings;

Flow coatings;

Bituminous roof primers;

Calcimine recoaters;

Impacted immersion coatings;

Nuclear coatings;

Thermoplastic rubber coating and mastic; and

Specialty primers, sealers, and undercoaters.